<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 14, 2000
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------
ENERGY EAST CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 14-1798693
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
------------------------------
P.O. BOX 12904
ALBANY, NEW YORK 12212-2904
(518) 434-3049
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
----------------------------------
<TABLE>
<S> <C>
KENNETH M. JASINSKI LEONARD BLUM, ESQ.
Executive Vice President and General Counsel FRANK LEE, ESQ.
Energy East Corporation Huber Lawrence & Abell
One Canterbury Green 605 Third Avenue
Stamford, CT 06904 New York, NY 10158
(203) 325-0690 (212) 682-6200
(Names, addresses, including zip codes, and telephone numbers, including area codes, of agents for service)
</TABLE>
----------------------------------
WITH COPIES TO:
M. DOUGLAS DUNN, ESQ.
ROBERT B. WILLIAMS, ESQ.
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, NY 10005
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE(1)(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Energy East Corporation
Debt Securities..................... $500,000,000 100% $500,000,000 $132,000
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Exclusive of accrued interest, if any.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant files
a further amendment which specifically states that this registration statement
will then become effective in accordance with Section 8(a) of the Securities Act
of 1933 or until this registration statement becomes effective on such date as
the Securities and Exchange Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED , 2000
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS
$500,000,000
ENERGY EAST CORPORATION
DEBT SECURITIES
------------------
We may offer to sell from time to time up to $500,000,000 in principal
amount of our notes, debentures or other unsecured debt securities in one or
more series with the same or different terms.
We may sell the debt securities through agents, dealers or underwriters, or
directly to one or more purchasers as are designated from time to time. The
specific terms of each series of the debt securities will be determined at the
time they are sold and the following information will be included in a
prospectus supplement:
- - Total amount of debt securities offered
- - Form of debt securities
- - Series designation
- - Agent, dealer or underwriter, if any
- - Commission an agent will receive or discount a dealer or underwriter will
receive and an estimate of the net proceeds we will receive
- - Maturity date of debt securities
- - Interest rates or method of calculating interest rates
- - Interest payment dates
- - Initial public offering price or purchase price
- - Terms for repayment or redemption, if any
- - Any other terms applicable to the debt securities
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement.
------------------------
The date of this prospectus is , 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
ABOUT THIS PROSPECTUS....................................... 3
WHERE YOU CAN FIND MORE INFORMATION......................... 3
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS... 4
ENERGY EAST CORPORATION..................................... 5
RECENT DEVELOPMENTS......................................... 6
USE OF PROCEEDS............................................. 6
RATIO OF EARNINGS TO FIXED CHARGES.......................... 7
DESCRIPTION OF DEBT SECURITIES.............................. 7
PLAN OF DISTRIBUTION........................................ 16
EXPERTS..................................................... 17
LEGAL MATTERS............................................... 17
PRO FORMA FINANCIAL INFORMATION............................. F-1
</TABLE>
------------------------
In this prospectus, references to "we," "us" and "our" refer to Energy East
Corporation, unless the context indicates that "we," "us" or "our" refers to
Energy East Corporation together with its consolidated subsidiaries.
------------------------
2
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may, from time to time, sell any combination of the
debt securities described in this prospectus in one or more offerings of one or
more series. The aggregate principal amount of debt securities which we may
offer under this prospectus is $500,000,000. This prospectus only provides you
with a general description of the securities that we may offer. Each time we
sell debt securities, we will provide a "prospectus supplement" that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information."
We believe that we have included or incorporated by reference in this
prospectus all information material to investors, but certain details that may
be important for specific investment purposes have not been included. For more
detail, you should read the exhibits filed with or incorporated by reference
into the registration statement.
WHERE YOU CAN FIND MORE INFORMATION
AVAILABLE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy this information at the SEC's
Public Reference Room and at its Regional Offices at:
<TABLE>
<S> <C> <C>
Public Reference Room New York Regional Office Chicago Regional Office
Room 1024, Judiciary Plaza Suite 1300 Citicorp Center
450 Fifth Street, N.W. 7 World Trade Center Suite 1400
Washington, DC 20549 New York, NY 10048 500 West Madison Street
Chicago, IL 60661-2511
</TABLE>
You may call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public from
commercial document retrieval services and at the Internet world wide website
that the SEC maintains at HTTP://WWW.SEC.GOV. In addition, materials and
information concerning us can be inspected at the New York Stock Exchange, 20
Broad Street, 7th Floor, New York, New York 10005, where our common stock is
listed.
This prospectus is part of a registration statement that we filed with the
SEC. The full registration statement may be obtained from the SEC or us, as
indicated below. Forms of the indenture and any other document establishing the
terms of the offered securities are filed as exhibits to the registration
statement. Statements in this prospectus about these documents are summaries.
You should refer to the actual documents for a more complete description of the
relevant matters.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
document, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus. The
information filed with the SEC in the future will automatically update and
supersede this information.
3
<PAGE>
We incorporate by reference the documents listed below and any future
filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, until all of the debt securities being offered
under this prospectus or any prospectus supplement are sold:
- Our Annual Report on Form 10-K for the year ended December 31, 1999.
- Our Current Reports on Form 8-K filed January 31, 2000, February 8, 2000
and February 18, 2000.
- Consolidated balance sheet, consolidated statement of earnings and
consolidated statement of cash flows of CMP Group, Inc., and the notes
related thereto, included in CMP Group's Annual Report on Form 10-K for
the year ended December 31, 1999.
Documents incorporated by reference are available from us without charge,
excluding all exhibits unless we have specifically incorporated by reference an
exhibit into this prospectus. You may obtain documents incorporated by reference
in this prospectus by writing or telephoning:
ENERGY EAST CORPORATION
Shareholder Services
P.O. Box 3200
Ithaca, New York 14852-3200
(607) 347-2506
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. THIS PROSPECTUS IS
DATED , 2000. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY
STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE
INFORMATION CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS
ACCURATE AS OF ANY DATE OTHER THAN THE DATE OF SUCH DOCUMENTS.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the additional
information described under the heading "Where You Can Find More Information"
may contain some forward-looking statements that involve risks and
uncertainties. We may make these statements about our financial condition,
results of operations and business. You can find many of these statements by
looking for words such as "believes," "expects," "anticipates," "estimates" or
similar expressions. These forward-looking statements are subject to numerous
assumptions, risks and uncertainties. Factors that may cause actual results to
differ from those indicated by such forward-looking statements, include, among
others, the following:
- our ability to compete in the rapidly changing and increasingly
competitive electricity and natural gas utility markets;
- changes in commodity supply or cost and the success of our strategies to
satisfy power requirements now that all of our coal-fired generation
assets have been sold;
- our ability to control other costs;
- the deregulation and unbundling of energy services;
- unanticipated Year 2000 issues;
- our ability to expand our products and services, including our energy
infrastructure in the Northeast;
4
<PAGE>
- our ability to integrate the operations of Connecticut Energy Corporation,
CMP Group, Inc., CTG Resources, Inc. and Berkshire Energy Resources with
our operations;
- the ability to obtain adequate and timely rate settlements;
- nuclear or environmental incidents;
- legal or administrative proceedings;
- changes in the cost or availability of capital;
- weather variations affecting customer energy usage; and
- other considerations that may be disclosed from time to time in our
publicly disseminated documents and filings.
You should not place undue reliance on the forward-looking statements, which
reflect circumstances only as of the date of this prospectus or any prospectus
supplement or, in the case of a document incorporated by reference, the date of
that document.
The cautionary statements in this section expressly qualify, in their
entirety, all subsequent forward-looking statements attributable to us or any
person acting on our behalf. We do not undertake any obligation to release
publicly any revisions to the forward-looking statements to reflect events or
circumstances occurring after the date of this prospectus, any prospectus
supplement or documents incorporated by reference.
ENERGY EAST CORPORATION
We are a holding company organized under the laws of the State of New York
in 1997. We are a super-regional energy services and delivery company with
operations in New York, Connecticut, Massachusetts, Maine, New Hampshire and New
Jersey and offices in New York and Connecticut. On May 1, 1998, we became the
parent of New York State Electric & Gas Corporation. In addition, on
February 8, 2000, we completed our merger with Connecticut Energy, which is a
holding company primarily engaged in the retail distribution of natural gas
through its wholly-owned subsidiary, The Southern Connecticut Gas Company.
Our principal energy delivery business is purchasing, transmitting and
distributing electricity and purchasing, transporting and distributing natural
gas in New York. After completing our merger with Connecticut Energy in
February 2000, we also began purchasing, transporting and distributing natural
gas in Connecticut. We generate electricity from our nuclear and hydroelectric
stations. Our New York service territory, 99% of which is located outside the
corporate limits of cities, is in the central, eastern and western parts of the
state. Our Connecticut service territory extends along the southern Connecticut
coast from Westport to Old Saybrook. The New York service territory has an area
of approximately 19,900 square miles and a population of 2,500,000, and the
Connecticut service territory has an area of approximately 488 square miles and
a population of 776,000. The larger cities in New York in which we serve both
electricity and natural gas are Binghamton, Elmira, Auburn, Geneva, Ithaca and
Lockport. In Connecticut, the larger cities in which we serve natural gas are
Bridgeport and New Haven. We serve approximately 825,000 electric customers and
408,000 natural gas customers. Our service territories reflect diversified
economies, including high-tech firms, light industry, colleges and universities,
agriculture and recreational facilities. No customer accounts for 5% or more of
either electric or natural gas revenues.
Our executive offices are located at One Canterbury Green, Stamford,
Connecticut 06904 where our telephone number is (203) 325-0690 and P.O. Box
12904, Albany, New York 12212-2904 where our telephone number is
(518) 434-3049.
5
<PAGE>
RECENT DEVELOPMENTS
We entered into definitive merger agreements with CMP Group, CTG Resources,
and Berkshire Energy during 1999 that are still pending. After completion of
these mergers, these companies will become our wholly-owned subsidiaries. We
expect these mergers to be completed by the end of the second quarter of 2000.
In the CMP Group merger, we will acquire all of the common stock of CMP Group
for $29.50 per share in cash. The CMP Group merger has an equity market value of
approximately $957 million and we will assume approximately $113 million of CMP
Group preferred stock and long-term debt. In the CTG Resources merger, 45% of
the common stock of CTG Resources will be converted into our common stock with a
value of $41.00 per CTG Resources share, and 55% will be converted into $41.00
in cash per CTG Resources share, subject to restrictions on the minimum and
maximum number of shares to be issued. Shareholders will be able to specify the
percentage of the consideration they wish to receive in stock and in cash,
subject to proration. The CTG Resources merger has an equity market value of
approximately $355 million and we will assume approximately $220 million of CTG
Resources' long-term debt. In the Berkshire Energy merger, we will acquire all
of the common shares of Berkshire Energy for $38.00 per share in cash. The
Berkshire Energy merger has an equity market value of approximately $96 million
and we will assume approximately $40 million of Berkshire Energy preferred stock
and long-term debt. The shareholders of CMP Group, CTG Resources and Berkshire
Energy approved their mergers with us at meetings held on October 7, 1999,
October 18, 1999 and February 29, 2000, respectively. All necessary regulatory
filings in connection with these merger transactions have been made. We intend
to register as a holding company with the SEC under the Public Utility Holding
Company Act of 1935 after these mergers are completed. Unaudited pro forma
financial statements giving effect to the Connecticut Energy merger, the CMP
Group merger, the CTG Resources merger and the Berkshire Energy merger are
included herein beginning on page F-1.
USE OF PROCEEDS
Unless otherwise specified in the supplement which accompanies this
prospectus, we intend to use the net proceeds from the sale of the debt
securities, along with the proceeds from the sale of our generation assets, to
fund the cash portion of the merger consideration for the three pending mergers
with CMP Group, CTG Resources and Berkshire Energy. In addition, we, or one of
our subsidiaries, may use a portion of the proceeds for general corporate
purposes, which may include financing the development and construction of new
facilities, additions to working capital and repurchase of securities. We may
also invest funds not immediately required for such purposes in short-term
investment grade securities. The amount and timing of sales of the debt
securities will depend on market conditions and the availability of other funds.
6
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed
charges for the five most recent fiscal years:
<TABLE>
<CAPTION>
ENDED DECEMBER 31,
-------------------------------------------------------
1999 1998 1997 1996 1995
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)... 4.14(2) 3.43 3.15 3.02 2.89
</TABLE>
- ------------------------
(1) The ratio of earnings to fixed charges is calculated by dividing earnings by
fixed charges. For this purpose earnings means income from continuing
operations before income taxes and fixed charges. Fixed charges means all
interest charges, the interest component of rentals and preferred stock
dividends of subsidiaries.
(2) Earnings before income taxes and fixed charges includes $84 million that we
paid in federal income taxes as a result of the sale of our coal-fired
generation assets. Excluding the $84 million, the ratio of earnings to fixed
charges would have been 3.52.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth the general terms and provisions of the
debt securities that we may offer by this prospectus. The debt securities are
senior debt securities and will rank equally with all of our other unsecured and
unsubordinated debt.
The debt securities will be issued under an indenture between us and The
Chase Manhattan Bank, as trustee. The indenture gives us broad authority to set
the particular terms of each series of debt securities, including the right to
modify certain of the terms contained in the indenture. The particular terms of
a series of debt securities and the extent, if any, to which the particular
terms of the issue modify the terms of the indenture will be described in the
prospectus supplement relating to the debt securities.
The indenture contains the full text of the matters described in this
section. Because this section is a summary, it does not describe every aspect of
the debt securities or the indenture. This summary is subject to and qualified
in its entirety by reference to all the provisions of the indenture, including
definitions of terms used in the indenture. We also include references in
parentheses to certain sections of the indenture. Whenever we refer to
particular sections or defined terms of the indenture in this prospectus or in a
prospectus supplement, these sections or defined terms are incorporated by
reference herein or in the prospectus supplement. This summary also is subject
to and qualified by reference to the description of the particular terms of the
debt securities described in the applicable prospectus supplement or
supplements.
Prospective purchasers of debt securities should be aware that special U.S.
Federal income tax, accounting and other considerations may be applicable to the
debt securities of a particular series. The prospectus supplement relating to an
issue of debt securities will describe these considerations, if they apply.
There is no requirement under the indenture that future issues of our debt
securities be issued under the indenture. We will be free to use other
indentures or documentation, containing provisions different from those included
in the indenture or applicable to one or more issues of debt securities, in
connection with future issues of other debt securities.
7
<PAGE>
GENERAL
The indenture does not limit the aggregate principal amount of debt
securities that we may issue under the indenture. The indenture provides that
the debt securities may be issued in one or more series. The debt securities may
be issued at various times and may have differing maturity dates and may bear
interest at differing rates. We need not issue all debt securities of one series
at the same time and, unless otherwise provided, we may reopen a series, without
the consent of the holders of the debt securities of that series, for issuances
of additional debt securities of that series.
Prior to the issuance of each series of debt securities, the terms of the
particular securities will be specified in a supplemental indenture, a board
resolution or in one or more officer's certificates authorized pursuant to a
board resolution. We refer you to the applicable prospectus supplement for a
description of the following terms of the series of debt securities:
- title of the debt securities;
- any limit on the aggregate principal amount of the debt securities;
- the person to whom any interest on the debt securities shall be payable,
if other than the person in whose name the debt securities are registered
at the close of business on the regular record date;
- the date or dates on which the principal of the debt securities will be
payable or how the date or dates will be determined;
- the rate or rates at which the debt securities will bear interest, or how
the rate or rates will be determined and the date or dates from which
interest will accrue;
- the dates on which interest will be payable;
- the record dates for payments of interest;
- the place or places, if any, in addition to the office of the trustee,
where the principal of, and premium, if any, and interest, if any, on the
debt securities will be payable;
- the period or periods within which, the price or prices at which, and the
terms and conditions upon which, the debt securities may be repaid, in
whole or in part, at the option of the holder thereof;
- any sinking fund or other provisions or options held by holders of the
debt securities that would obligate us to repurchase or redeem the debt
securities;
- the percentage, if less than 100%, of the principal amount of the debt
securities that will be payable if the maturity of the debt securities is
accelerated;
- any changes or additions to the events of default under the indenture or
changes or additions to our covenants under the indenture;
- any collateral, security, assurance or guarantee for the debt securities;
and
- any other specific terms applicable to the debt securities.
Unless we otherwise indicate in the applicable prospectus supplement, the
debt securities will be denominated in United States currency in minimum
denominations of $1,000 and multiples of $1,000.
Unless we otherwise indicate in the applicable prospectus supplement, there
are no provisions in the indenture or the debt securities that require us to
redeem, or permit the holders to cause a redemption of, the debt securities or
that otherwise protect the holders in the event that we incur
8
<PAGE>
substantial additional indebtedness, whether or not in connection with a change
in control of our company.
SECURITY AND RANKING
We conduct our operations primarily through our subsidiaries and
substantially all of our consolidated assets are held by our subsidiaries.
Accordingly, our cash flow and our ability to meet our obligations under the
debt securities are largely dependent upon the earnings of our subsidiaries and
the distribution or other payment of these earnings to us in the form of
dividends or loans or advances and repayment of loans and advances from us. Our
subsidiaries are separate and distinct legal entities and have no obligation to
pay any amounts due on our debt securities or to make any funds available for
payment of amounts due on our debt securities.
Because we are a holding company, our obligations under the debt securities
will be effectively subordinated to all existing and future liabilities of our
subsidiaries. Therefore, our rights and the rights of our creditors, including
the rights of the holders of our debt securities, to participate in the assets
of any subsidiary will be subject to the prior claims of the subsidiary's
creditors. To the extent that we may be a creditor with recognized claims
against any of our subsidiaries, our claims would still be effectively
subordinated to any security interest in, or mortgages or other liens on, the
assets of the subsidiary and would be subordinated to any indebtedness or other
liabilities of the subsidiary senior to that held by us.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in a prospectus supplement, we will pay interest
on our debt securities on each interest payment date by check mailed to the
person in whose name the debt security is registered as of the close of business
on the regular record date relating to the interest payment date, except that
interest payable at stated maturity, upon redemption or otherwise, will be paid
to the person to whom principal is paid. However, if we default in paying
interest on a debt security, we will pay defaulted interest to the registered
owner of the debt security in one of the following ways:
- we will first propose to the trustee a payment date for the defaulted
interest. Next, the trustee will choose a special record date for
determining which registered holders are entitled to the payment. The
special record date will be between 10 and 15 days before the payment date
we propose. Finally, we will pay the defaulted interest on the payment
date to the registered holder of the debt security as of the close of
business on the special record date; or
- we can propose to the trustee any other lawful manner of payment that is
consistent with the requirements of any securities exchange on which the
debt securities may be listed for trading. If the trustee thinks the
proposal is practicable, payment will be made as proposed.
REDEMPTION
We will set forth any terms for the redemption of debt securities in a
prospectus supplement. Unless we indicate differently in a prospectus
supplement, and except with respect to debt securities redeemable at the option
of the registered holder, debt securities will be redeemable upon notice by mail
between 30 and 60 days prior to the redemption date. If less than all of the
debt securities of any series or any tranche of a series are to be redeemed, the
trustee will select the debt securities to be redeemed and will choose the
method of random selection it deems fair and appropriate. (See Sections 301,
1103 and 1104.)
9
<PAGE>
Debt securities will cease to bear interest on the redemption date. We will
pay the redemption price and any accrued interest to the redemption date once
you surrender the debt security for redemption. (See Section 1106.) If only part
of a debt security is redeemed, the trustee will deliver to you a new debt
security of the same series for the remaining portion without charge. (See
Section 1107.)
We may make any redemption conditional upon the receipt by the paying agent,
on or prior to the date fixed for redemption, of money sufficient to pay the
redemption price. If the paying agent has not received the money by the date
fixed for redemption, we will not be required to redeem the debt securities.
(See Section 1104.)
REGISTRATION, TRANSFER, EXCHANGE AND FORM
The debt securities will be issued only in fully registered form, without
interest coupons and in denominations that are even multiples of $1,000. Debt
securities of any series will be exchangeable for other debt securities of the
same series of any authorized denominations and of a like aggregate principal
amount and tenor. (See Section 305.)
Unless we otherwise indicate in the applicable prospectus supplement, debt
securities may be presented for registration of transfer, duly endorsed or
accompanied by a duly executed written instrument of transfer, at the office or
agency maintained for such purpose, without service charge except for
reimbursement of taxes and other governmental charges as described in the
indenture. (See Section 305.)
In the event of any redemption of debt securities of any series, the trustee
will not be required to exchange or register a transfer of any debt securities
of the series selected, called or being called for redemption except the
unredeemed portion of any debt security being redeemed in part. (See
Section 305.)
BOOK-ENTRY ONLY SYSTEM
The following discussion pertains to debt securities that are issued in
book-entry only form.
One or more global notes would be issued to DTC, The Depository Trust
Company, or its nominee. DTC would keep a computerized record of its
participants (for example, your broker) whose clients have purchased the debt
securities. The participant would then keep a record of its clients who
purchased the debt securities. A global note may not be transferred, except that
DTC, its nominees and their successors may transfer an entire global note to one
another.
Under book-entry only, we will not issue certificates to individual holders
of the debt securities. Beneficial interests in global notes will be shown on,
and transfers of beneficial interests in global notes will be made only through,
records maintained by DTC and its participants.
DTC has advised us that it is:
- a limited-purpose trust company organized under the New York Banking Law;
- a "banking organization" within the meaning of the New York Banking Law;
- a member of the Federal Reserve System;
- a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
- a "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934.
DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among direct participants of securities transactions,
such as transfers and pledges, in deposited
10
<PAGE>
securities through computerized records for direct participants' accounts. This
eliminates the need to exchange certificates. Direct participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
direct participant. The rules that apply to DTC and its participants are on file
with the SEC.
DTC is owned by a number of its direct participants and by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and the
trustee will treat DTC's nominee as the owner of the global notes for all
purposes. Accordingly, we and the trustee will have no direct responsibility or
liability to pay amounts due on the debt securities to owners of beneficial
interests in the global notes.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit direct participants' accounts on the payment date according
to their respective holdings of beneficial interests in the global notes as
shown on DTC's records as of the record date for such payment. In addition, it
is DTC's current practice to assign any consenting or voting rights to direct
participants whose accounts are credited with securities on a record date, by
using an omnibus proxy. Payments by participants to owners of beneficial
interests in the global notes, and voting by participants, will be governed by
the customary practices between the participants and owners of beneficial
interests, as is the case with securities held for the account of customers
registered in "street name." However, these payments will be the responsibility
of the participants and not of DTC, the trustee, or us.
Debt securities represented by a global note will be exchangeable for debt
securities certificates with the same terms in authorized denominations only if:
- DTC notifies us that it is unwilling or unable to continue as depository
or if DTC ceases to be a clearing agency registered under applicable law;
or
- we instruct the trustee that the global note is now exchangeable; or
- an event of default has occurred and is continuing.
According to DTC, the foregoing information with respect to DTC has been
provided to the financial community for informational purposes only and is not
intended to serve as a representation, warranty, or contract modification of any
kind.
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
We have agreed not to consolidate with or merge into any other entity or
convey, transfer, or lease our properties and assets substantially as an
entirety to any entity unless:
- the successor is an entity organized and existing under the laws of the
United States of America or any State or the District of Columbia;
- the successor expressly assumes by a supplemental indenture the due and
punctual payment of the principal of, and premium, if any, and interest on
all the outstanding debt securities and the performance of every covenant
of the indenture that we would otherwise have to perform; and
11
<PAGE>
- immediately after giving effect to the transactions, no event of default
and no event which after notice or lapse of time or both would become an
event of default, will have occurred and be continuing. (See
Section 801.)
LIMITATION ON SECURED DEBT
If this covenant is made applicable to the debt securities of any particular
series, we have agreed that we will not create, issue, incur or assume any
Secured Debt (as defined below) without the consent of the holders of a majority
in principal amount of the outstanding debt securities of all series with
respect to which this covenant is made (we refer to all such debt securities as
"Benefitted Securities"), considered as one class, provided, however, that the
foregoing covenant will not prohibit the creation, issuance, incurrence or
assumption of any debt securities by us if either:
- we secure all Benefitted Securities then outstanding equally and ratably
with the Secured Debt; or
- we deliver to the Trustee bonds, notes or other evidences of indebtedness
secured by a Lien (as defined below) which secures the Secured Debt in an
aggregate principal amount equal to the aggregate principal amount of the
Benefitted Securities then outstanding and meeting certain other
requirements in the Indenture.
"Debt" means
- indebtedness for borrowed money evidenced by a bond, debenture, note or
other written instrument or agreement by which we are obligated to repay
such borrowed money; and
- any guaranty by us of any such indebtedness of another person.
"Lien" means any lien, deed of trust, pledge or security interest.
"Secured Debt" means Debt created, issued, incurred or assumed by us which
is secured by a Lien upon any shares of stock of any Significant Subsidiary, as
defined in Regulation S-X of the rules and regulations under the Securities Act,
whether owned at the date of the initial authentication and delivery of the debt
securities of any series or thereafter acquired. (See Section 1007.)
MODIFICATION OF THE INDENTURE
Under the indenture or any supplemental indenture, our rights and the rights
of the holders of debt securities may be changed with the consent of the holders
representing a majority in principal amount of the outstanding debt securities
of all series affected by the change, voting as one class, provided that the
following changes may not be made without the consent of the holders of each
outstanding debt security affected thereby:
- change the fixed date upon which the principal of or the interest on any
debt security is due and payable, or reduce the principal amount thereof
or the rate of interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an original issue
discount security that would be payable upon a declaration of acceleration
of the maturity thereof, or change any place of payment where, or the
currency in which, any debt security or any premium, if any, or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any payment on or after the date such payment is due or, in
the case of redemption, on or after the date fixed for such redemption;
12
<PAGE>
- reduce the stated percentage of debt securities, the consent of the
holders of which is required for any modification of the applicable
indenture or for waiver by the holders of certain of their rights; or
- modify certain provisions of the indenture. (See Section 902.)
An original issue discount security means any security authenticated and
delivered under the indenture which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof.
The indenture also contains provisions permitting us and the trustee to
amend the indenture in certain circumstances without the consent of the holders
of any debt securities to evidence a merger, the replacement of the trustee and
for certain other purposes. (See Section 901.)
EVENTS OF DEFAULT
An event of default with respect to any series of debt securities is defined
in the indenture as being any one of the following:
- failure to pay interest on the debt securities of that series for 30 days
after payment is due;
- failure to pay principal or any premium on the debt securities of that
series when due;
- failure to perform other covenants in the indenture for 60 days after we
are given written notice from the trustee or the trustee receives written
notice from the registered owners of at least 25% in principal amount of
the debt securities of that series;
- failure to pay any sinking fund installment when due;
- default occurs under any bond, note, debenture or other instrument
evidencing any indebtedness for money borrowed by us, excluding any of our
subsidiaries (including a default with respect to any other series of debt
securities issued under the indenture), or under any mortgage, indenture
or other instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by us (or the
payment of which is guaranteed by us), excluding any of our subsidiaries,
whether such indebtedness or guarantee exists on the date of the indenture
or is issued or entered into following the date of the indenture, if:
- either:
- such default results from failure to pay any such indebtedness when
due; or
- as a result of such default the maturity of such indebtedness has
been accelerated prior to its expressed maturity; and
- the principal amount of such indebtedness, together with the principal
amount of any other such indebtedness in default for failure to pay any
such indebtedness when due or the maturity of which has been so
accelerated, aggregates at least $40 million; and
- certain events of bankruptcy, insolvency, reorganization, receivership or
liquidation relating to us. (See Section 501.)
An event of default regarding a particular series of debt securities does
not necessarily constitute an event of default for any other series of debt
securities.
We will be required to file with the trustee annually an officers'
certificate as to the absence of default in performance of certain covenants in
the indenture. (See Section 1008.) The indenture provides that the trustee may
withhold notice to the holders of the debt securities of any default, except in
payment of principal of, or premium, if any, or interest on, the debt securities
or in the
13
<PAGE>
payment of any sinking fund installment with respect to the debt securities, if
the trustee in good faith determines that it is in the interest of the holders
of the debt securities to do so. (See Section 602.)
The indenture provides that, if an event of default with respect to the debt
securities specified therein shall have happened and be continuing, either the
trustee or the holders of 25% or more in aggregate principal amount of the debt
securities may declare the principal amount of all the debt securities to be due
and payable immediately. However, if we shall cure all defaults and certain
other conditions are met, such declaration may be annulled and past defaults may
be waived by the holders of a majority in aggregate principal amount of the debt
securities. (See Section 502.)
Subject to the provisions of the indenture relating to the duties of the
trustee, the trustee will be under no obligation to exercise any of its rights
or powers under the indenture at the request or direction of any of the holders
of the debt securities, unless the holders shall have offered to the trustee
reasonable indemnity. (See Section 603.)
Subject to the provision for indemnification, the holders of a majority in
principal amount of the debt securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
trustee, or exercising any trust or power conferred on the trustee with respect
to the debt securities. However, the trustee shall have the right to decline to
follow any direction if the trustee shall determine that the action so directed
conflicts with any law or the provisions of the indenture or if the trustee
shall determine that the action would be prejudicial to holders not taking part
in the direction. (See Section 512.)
DEFEASANCE
The indenture provides, unless otherwise provided, with respect to a
particular series of debt securities, that we may elect either (a) to be
discharged from all of our obligations with respect to the debt securities of
any series, except for obligations to register the transfer or exchange of debt
securities, replace stolen, lost or mutilated debt securities, to maintain
paying agencies and to hold moneys for payment in trust which we refer to as
"defeasance," or (b) to be released from our obligations under sections of the
indenture described under "--CONSOLIDATION, MERGER, CONVEYANCE, SALE OR
TRANSFER" and "--LIMITATION ON SECURED DEBT" or to certain covenants relating to
corporate existence and maintenance of properties and insurance, in each case,
which we refer to as "covenant defeasance," if:
- we deposit with the trustee, in trust, money, or in certain cases, U.S.
government obligations sufficient to pay and discharge (i) the principal
of, and premium, if any, and interest, if any, on the outstanding debt
securities on the dates such payments are due, in accordance with the
terms of the debt securities and (ii) any mandatory sinking fund payments
applicable to the debt securities on the day on which payments are due and
payable in accordance with the terms of the indenture and of the debt
securities;
- no event of default or event which with notice or lapse of time would
become an event of default, including by reason of such deposit, with
respect to the debt securities shall have occurred and be continuing on
the date of such deposit;
- we deliver to the trustee an opinion of counsel to the effect that the
holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance of certain
obligations; and
- we have delivered to the trustee an officers' certificate and an opinion
of counsel, each stating that all conditions precedent provided for in the
indenture relating to the satisfaction and discharge of the debt
securities have been complied with. (See Sections 403 and 1009.)
14
<PAGE>
Discharged means, with respect to the debt securities of any series, the
discharge of the entire indebtedness represented by, and our obligations under,
the debt securities of such series and in the satisfaction of all of our
obligations under the indenture relating to the debt securities of such series,
except (a) the rights of holders of the debt securities of such series to
receive, from the trust fund established pursuant to the indenture, payment of
the principal of and interest and premium, if any, on the debt securities of
such series when such payments are due, (b) our obligations with respect to the
debt securities of such series with respect to registration, transfer, exchange
and maintenance of a place of payment and (c) the rights, powers, trusts,
duties, protections and immunities of the trustee under the indenture. (See
Section 101.)
If we have deposited or caused to be deposited money or U.S. government
obligations to pay or discharge the principal of, and premium, if any, and
interest, if any, on the outstanding debt securities to and including a
redemption date on which all of the outstanding debt securities are to be
redeemed, such redemption date shall be irrevocably designated by a board of
directors resolution delivered to the trustee on or prior to the date of deposit
of such money or U.S. government obligations, and such board of directors
resolution shall be accompanied by an irrevocable company request that the
trustee give notice of such redemption in our name and at our expense not less
than 30 nor more than 60 days prior to such redemption date in accordance with
the indenture. (See Section 403.)
U.S. government obligations means direct obligations of the United States
for the payment of which its full faith and credit is pledged, or obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States and the payment of which is unconditionally guaranteed by
the United States. U.S. government obligations shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such
U.S. government obligation or a specific payment of interest on or principal of
any such U.S. government obligation held by such custodian for the account of a
holder of a depositary receipt. However, except as required by law, such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in
respect of the U.S. government obligation or the specific payment of interest on
or principal of the U.S. government obligation evidenced by such depositary
receipt. (See Section 101.)
RESIGNATION OR REMOVAL OF TRUSTEE
The trustee may resign at any time by giving written notice to us specifying
the day upon which the resignation is to take effect. The resignation will take
effect immediately upon the later of the appointment of a successor trustee and
such specified day. (See Section 610.)
The trustee may be removed at any time by an instrument or concurrent
instruments in writing delivered to the trustee and us and signed by the
holders, or their attorneys-in-fact, representing at least a majority in
principal amount of the then outstanding debt securities. In addition, under
certain circumstances, we may remove the trustee upon notice to the holder of
each debt security outstanding and the trustee, and appointment of a successor
trustee. (See Section 610.)
CONCERNING THE TRUSTEE
The Chase Manhattan Bank is the trustee under the indenture. Chase Manhattan
also serves as the trustee under the first mortgage bond indenture with respect
to the first mortgage bonds issued by our subsidiary, NYSEG. We maintain other
banking relationships in the ordinary course of business with the trustee and
its affiliates.
15
<PAGE>
GOVERNING LAW
The indenture and the debt securities will be governed by and construed in
accordance with the laws of the State of New York.
PLAN OF DISTRIBUTION
We may use the following methods to sell the debt securities:
- through negotiation with one or more underwriters;
- through one or more agents or dealers designated from time to time;
- directly to purchasers; or
- through any combination of the above.
The distribution of the debt securities may be effected from time to time in one
or more transactions at a fixed price or prices which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. A prospectus supplement or a supplement
thereto will describe the method of distribution of any series of debt
securities.
If we use any underwriters in the sale of debt securities, we will enter
into an underwriting agreement, distribution agreement or similar agreement with
such underwriters prior to the time of sale, and the names of the underwriters
used in the transaction will be set forth in the prospectus supplement or a
supplement thereto relating to such sale. If an underwriting agreement is
executed, the debt securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of the sale. Unless we otherwise indicate
in the prospectus supplement, the underwriting or purchase agreement will
provide that the underwriter or underwriters are obligated to purchase all of
the debt securities offered in the prospectus supplement if any are purchased.
If any debt securities are sold through agents designated by us from time to
time, the prospectus supplement or a supplement thereto will name any such
agent, set forth any commissions payable by us to any such agent and the
obligations of such agent with respect to the securities. Unless otherwise
indicated in the prospectus supplement or a supplement thereto, any such agent
will be acting on a best efforts basis for the period of its appointment.
Certain persons participating in an offering of the debt securities may
engage in transactions that stabilize, maintain or otherwise affect the price of
the debt securities. Specifically, the underwriters, if any, may overallot in
connection with the offering, and may bid for, and purchase, the debt securities
in the open market.
No series of debt securities, when first issued, will have an established
trading market. Any underwriters or agents to or through whom debt securities
are sold by us for public offering and sale may make a market in such debt
securities, but underwriters and agents will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any debt securities.
In connection with the sale of the debt securities, any purchasers,
underwriters or agents may receive compensation from us or from purchasers in
the form of concessions or commissions. The underwriters will be, and any agents
and any dealers participating in the distribution of the debt securities may be,
deemed to be underwriters within the meaning of the Securities Act of 1933. The
agreement between us and any purchasers, underwriters or agents will contain
reciprocal covenants of indemnity, and will provide for contribution by us in
respect of our indemnity
16
<PAGE>
obligations, between us and the purchasers, underwriters, or agents against
certain liabilities, including liabilities under the Securities Act of 1933.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us and our affiliates in the ordinary course of business.
EXPERTS
Our financial statements and the related financial statement schedules
incorporated in this prospectus by reference to our Annual Report on Form 10-K
for the year ended December 31, 1999, have been so incorporated in reliance on
the reports of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
The financial statements and the related financial statement schedules of
CMP Group incorporated in this prospectus by reference to CMP Group's Annual
Report on Form 10-K for the year ended December 31, 1999, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL MATTERS
The validity of the debt securities and certain other matters will be passed
upon for us by Huber Lawrence & Abell, New York, New York, and for any
underwriters, dealers or agents by Milbank, Tweed, Hadley & McCloy LLP, New
York, New York. As of April 11, 2000, members of Huber Lawrence & Abell owned
4,524 shares of our common stock.
17
<PAGE>
PRO FORMA FINANCIAL INFORMATION
ENERGY EAST CORPORATION
COMBINED CONDENSED BALANCE SHEET
GIVING EFFECT TO THE CONNECTICUT ENERGY MERGER, THE CMP GROUP MERGER,
THE CTG RESOURCES MERGER AND THE BERKSHIRE ENERGY MERGER
AT DECEMBER 31, 1999
ACTUAL AND PRO FORMA
(UNAUDITED)
<TABLE>
<CAPTION>
BERKSHIRE
ENERGY CONNECTICUT CMP CTG ENERGY MERGER PRO FORMA
EAST ENERGY GROUP RESOURCES RESOURCES PRO FORMA ENERGY
ACTUAL ACTUAL ACTUAL ACTUAL ACTUAL ADJUSTMENTS EAST
---------- ----------- ---------- --------- --------- ----------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Assets
Current Assets
Cash and cash equivalents....... $116,806 $6,439 $129,950 $1,645 $153 $(204,896)(4)(10) $50,097
Special deposits................ 1,232 -- -- -- -- -- 1,232
Temporary investments........... 760,996 -- -- -- -- (760,996)(4) --
Accounts receivable, net........ 157,383 44,022 159,385 58,513 9,224 -- 428,527
Other........................... 58,556 29,859 20,283 24,757 8,747 -- 142,202
---------- -------- ---------- -------- -------- --------- ----------
Total Current Assets........ 1,094,973 80,320 309,618 84,915 18,124 (965,892) 622,058
Utility Plant, at Original Cost... 4,161,452 423,624 1,355,579 532,712 127,387 -- 6,600,754
Less accumulated depreciation... 2,034,312 151,225 556,588 195,239 42,452 -- 2,979,816
---------- -------- ---------- -------- -------- --------- ----------
Net utility plant in
service..................... 2,127,140 272,399 798,991 337,473 84,935 -- 3,620,938
Construction work in progress... 12,689 3,259 33,681 1,745 5,384 -- 56,758
---------- -------- ---------- -------- -------- --------- ----------
Total Utility Plant......... 2,139,829 275,658 832,672 339,218 90,319 -- 3,677,696
Other Property and Investments,
Net............................. 121,969 22,543 51,059 12,248 -- 6,333(5) 214,152
Regulatory Assets................. 216,891 95,756 625,846 8,832 6,296 -- 953,621
Other Assets...................... 195,735 29,770 228,065 24,410 1,309 57,742(6) 537,031
Goodwill.......................... -- -- -- -- 2,020 997,993(7) 1,000,013
---------- -------- ---------- -------- -------- --------- ----------
Total Assets................ $3,769,397 $504,047 $2,047,260 $469,623 $118,068 $ 96,176 $7,004,571
========== ======== ========== ======== ======== ========= ==========
</TABLE>
The notes on pages F-4 to F-6 are an integral part of the
pro forma combined condensed financial statements.
F-1
<PAGE>
<TABLE>
<CAPTION>
BERKSHIRE
ENERGY CONNECTICUT CMP CTG ENERGY MERGER PRO FORMA
EAST ENERGY GROUP RESOURCES RESOURCES PRO FORMA ENERGY
ACTUAL ACTUAL ACTUAL ACTUAL ACTUAL ADJUSTMENTS EAST
---------- ----------- ---------- --------- --------- ----------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Liabilities
Current Liabilities
Current portion of long-term
debt and sinking fund
requirements.................. $2,606 $1,585 $11,937 $3,284 -- -- $19,412
Notes payable and interim
financing..................... 163,240 40,100 60,199 1,800 $22,350 -- 287,689
Taxes accrued................... 14,732 3,190 -- 2,305 -- -- 20,227
Other........................... 297,494 31,705 131,402 40,053 3,290 $70,318(7) 574,262
---------- -------- ---------- -------- -------- --------- ----------
Total Current Liabilities... 478,072 76,580 203,538 47,442 25,640 70,318 901,590
Regulatory Liabilities
Gain on sale of generation
assets........................ -- -- 536,368 -- -- -- 536,368
Other........................... 92,764 2,940 60,564 74,874 13,481 36,620(6) 281,243
---------- -------- ---------- -------- -------- --------- ----------
Total Regulatory
Liabilities............... 92,764 2,940 596,932 74,874 13,481 36,620 817,611
Deferred Income Taxes and
Unamortized Investment Tax
credits......................... 213,006 81,904 80,398 2,486 1,036 10,749(9) 389,579
Other............................. 336,353 6,747 464,473 -- 1,885 -- 809,458
Long-term debt.................... 1,235,089 147,666 122,542 212,256 40,000 500,000(10) 2,257,553
---------- -------- ---------- -------- -------- --------- ----------
Total Liabilities........... 2,355,284 315,837 1,467,883 337,058 82,042 617,687 5,175,791
Commitments and contingencies..... -- 2,123 -- -- -- -- 2,123
Preferred stock redeemable solely
at the option of subsidiary..... 10,159 -- 35,528 858 310 -- 46,855
Preferred stock subject to
mandatory redemption
requirements.................... -- -- 910 -- -- -- 910
Common Stock Equity
Common stock Energy East ($.01
par value, 300,000 shares
authorized and 109,343 shares
outstanding as of Dec. 31,
1999)......................... 1,108 -- -- -- -- 155 1,263
Common stock Connecticut Energy
($1 par value, 30,000 shares
authorized and 10,374 shares
outstanding as of Dec. 31,
1999)......................... -- 10,374 -- -- -- (10,374) --
Common stock CMP Group ($5 par
value, 80,000 shares
authorized and 32,443 shares
outstanding as of Dec. 31,
1999)......................... -- -- 162,213 -- -- (162,213) --
Common stock CTG Resources (No
par value, 20,000 shares
authorized and 8,648 shares
outstanding as of Dec. 31,
1999).........................
Common stock Berkshire Energy
Resources (No par value,
10,000 shares authorized and
2,523 shares outstanding as of
Dec. 31, 1999)................ -- -- -- -- 28,838 (28,838) --
Capital in excess of par
value......................... 659,255 123,152 284,330 67,448 -- (100,147) 1,034,038
Retained earnings............... 782,588 52,781 97,038 64,728 6,878 (221,425) 782,588
Adjustment for minimum pension
liability..................... -- (220) -- -- -- 220 --
Unearned compensation--
restricted stock awards....... -- -- -- (469) -- 469 --
Treasury stock, at cost (1,500
shares at Dec. 31, 1999)...... (38,997) -- (642) -- -- 642 (38,997)
---------- -------- ---------- -------- -------- --------- ----------
Total Common Stock Equity..... 1,403,954 186,087 542,939 131,707 35,716 (521,511) 1,778,892
---------- -------- ---------- -------- -------- --------- ----------
Total Liabilities and
Shareholders' Equity........ $3,769,397 $504,047 $2,047,260 $469,623 $118,068 $96,176 $7,004,571
========== ======== ========== ======== ======== ========= ==========
</TABLE>
The notes on pages F-4 to F-6 are an integral part of the
pro forma combined condensed financial statements.
F-2
<PAGE>
ENERGY EAST CORPORATION
COMBINED CONDENSED STATEMENT OF INCOME
GIVING EFFECT TO THE CONNECTICUT ENERGY MERGER, THE CMP GROUP MERGER,
THE CTG RESOURCES MERGER AND THE BERKSHIRE ENERGY MERGER
TWELVE MONTHS ENDED DECEMBER 31, 1999
ACTUAL AND PRO FORMA
(UNAUDITED)
<TABLE>
<CAPTION>
BERKSHIRE PRO
CONNECTICUT CMP CTG ENERGY MERGER FORMA
ENERGY EAST ENERGY GROUP RESOURCES RESOURCES PRO FORMA ENERGY
ACTUAL ACTUAL ACTUAL ACTUAL ACTUAL ADJUSTMENTS EAST
------------ ------------ --------- ----------- ----------- ------------ ----------
(THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Revenues
Sales and services........... $2,278,608 $235,633 $992,656 $292,179 $51,775 -- $3,850,851
Operating Expenses
Electricity purchased and
fuel used in generation.... 905,367 -- 515,591 -- -- -- 1,420,958
Natural gas purchased........ 186,722 103,980 -- 145,860 23,612 -- 460,174
Other operating expenses..... 312,129 49,529 238,703 55,450 13,729 -- 669,540
Maintenance.................. 85,849 3,759 33,180 7,702 617 -- 131,107
Depreciation and
amortization............... 639,069 18,330 50,593 20,352 4,631 $24,950(11) 757,925
Other taxes.................. 194,783 15,323 22,374 19,993 2,211 -- 254,684
Gain on sale of generation
assets..................... (674,572) -- -- -- -- -- (674,572)
Writeoff of Nine Mile Point
2.......................... 82,050 -- -- -- -- -- 82,050
---------- -------- -------- -------- ------- -------- ----------
Total Operating
Expenses............... 1,731,397 190,921 860,441 249,357 44,800 24,950 3,101,866
---------- -------- -------- -------- ------- -------- ----------
Operating Income............... 547,211 44,712 132,215 42,822 6,975 (24,950) 748,985
Other (Income) and Deductions.. (39,214) 2,874 (37,902) (3,621) (2,171) -- (80,034)
Merger related expenses........ -- 3,736 4,385 3,698 438 -- 12,257
Interest Charges, Net.......... 132,908 13,354 53,471 15,578 4,313 40,000(10) 259,624
Preferred Stock Dividends of
Subsidiary................... 2,706 -- 3,315 61 15 -- 6,097
---------- -------- -------- -------- ------- -------- ----------
Income Before Federal Income
Taxes........................ 450,811 24,748 108,946 27,106 4,380 (64,950) 551,041
Federal Income Taxes........... 214,494 8,370 54,092 13,292 1,816 (14,000)(9) 278,064
---------- -------- -------- -------- ------- -------- ----------
Income Before Extraordinary
Item......................... 236,317 16,378 54,854 13,814 2,564 (50,950) 272,977
Extraordinary Loss on Early
Extinguishment of Debt, Net
of Income Tax Benefit of
$9,458....................... 17,566 -- -- -- -- -- 17,566
---------- -------- -------- -------- ------- -------- ----------
Net Income..................... $218,751 $16,378 $54,854 $13,814 $2,564 ($50,950) $255,411
========== ======== ======== ======== ======= ======== ==========
Earnings Per Share, basic and
diluted...................... $ 1.88 $ 1.94
Average Common Shares
Outstanding.................. 116,316 15,548 131,864
</TABLE>
The notes on pages F-4 to F-6 are an integral part of the
pro forma combined condensed financial statements.
F-3
<PAGE>
NOTES TO UNAUDITED PRO FORMA
COMBINED CONDENSED FINANCIAL STATEMENTS
GIVING EFFECT TO THE CONNECTICUT ENERGY MERGER, THE CMP GROUP
MERGER, THE CTG RESOURCES MERGER AND THE BERKSHIRE ENERGY MERGER
NOTE 1. UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS.
The unaudited pro forma combined condensed financial statements as of and
for the twelve months ended December 31, 1999, have been adjusted to give effect
to the Connecticut Energy merger that was completed in February 2000, the CMP
Group merger, the CTG Resources merger and the Berkshire Energy merger. The
unaudited pro forma combined condensed financial statements reflect preliminary
purchase accounting adjustments in compliance with generally accepted accounting
principles. Estimates relating to the fair value of some assets, liabilities and
other events have been made as more fully described below. Actual adjustments
will be made on the basis of actual assets, liabilities and other items as of
the closing date of the mergers on the basis of appraisals and evaluations.
Therefore, actual amounts may differ from those reflected below.
The unaudited pro forma combined condensed balance sheet assumes that the
mergers occurred on December 31, 1999. The unaudited pro forma combined
condensed statement of income for the twelve months ended December 31, 1999,
assumes that the mergers were completed on January 1, 1999 and reflects the
effect of the sales of Energy East's coal-fired generation assets and CMP
Group's steam and hydro generation assets when they occurred in March and
May 1999 and April 1999, respectively, and has not been adjusted to reflect the
effect of those transactions as of January 1, 1999.
The pro forma combined condensed financial statements should be read in
conjunction with the consolidated historical financial statements and the
related notes of Energy East, which are incorporated by reference. The pro forma
statements are for illustrative purposes only. They are not necessarily
indicative of the financial position or operating results that would have
occurred had the sales and the mergers been completed on January 1, 1999 or
December 31, 1999, as assumed above; nor is the information necessarily
indicative of future financial position or operating results.
NOTE 2. ACCOUNTING METHOD.
The Connecticut Energy merger, the CMP Group merger, the CTG Resources
merger and the Berkshire Energy merger will be accounted for using the purchase
method of accounting in accordance with generally accepted accounting
principles. The amount of goodwill recorded will reflect the excess of the
purchase prices over the estimated net fair value of assets and liabilities of
Connecticut Energy's, CMP Group's, CTG Resources's and Berkshire Energy's
utility and nonutility businesses at the time of closing, plus Energy East's
estimated transaction costs related to the mergers. The assets and liabilities
of CMP Group's, CTG Resources's and Berkshire Energy's unregulated subsidiaries
will be revalued to fair value, including an allocation of goodwill to the
subsidiaries, if appropriate. The remaining goodwill will be allocated to
Southern Connecticut Gas, Central Maine Power, Connecticut Natural Gas, and
Berkshire Gas Company and will be recorded as an acquisition adjustment. As our
fair value estimates are preliminary in nature, the amount of goodwill will be
adjusted over the twelve months following the mergers as actual amounts become
known.
NOTE 3. EARNINGS PER SHARE AND AVERAGE SHARES OUTSTANDING.
The pro forma earnings per share and number of average shares outstanding
have been restated to reflect Energy East's two-for-one common stock split,
effective April 1, 1999, the number
F-4
<PAGE>
of shares, 9.4 million, that were issued to Connecticut Energy shareholders upon
completion of that merger in February 2000 and the average number of shares that
would have been outstanding if the merger with CTG Resources occurred at the
beginning of the periods presented assuming a conversion of 45% CTG Resources
shares into 1.57 Energy East shares per CTG Resources share. The following table
presents the range of shares that could be issued based on various potential
conversion ratios under the merger agreement:
<TABLE>
<S> <C> <C> <C>
Conversion ratio.............................. 1.36 1.57 1.73
Number of shares (thousands).................. 5,296 6,107 6,740
</TABLE>
NOTE 4. CASH CONSIDERATION.
This amount reflects the cash consideration paid to Connecticut Energy
shareholders based on a purchase price of $42.00 per share for 50% of the
Connecticut Energy shares outstanding, the cash consideration paid to CMP
Group's shareholders based on a purchase price per share of $29.50 for all of
the CMP Group shares outstanding, the cash consideration paid to CTG Resources
shareholders based on a purchase price per share of $41.00 for 55% of the CTG
Resources shares outstanding and the cash consideration paid to Berkshire Energy
shareholders based on a purchase price per share of $38.00 for all of the
Berkshire Energy shares outstanding.
NOTE 5. OTHER PROPERTY AND INVESTMENTS.
This amount reflects the increase in book value of Connecticut Energy's
nonutility assets to fair market value based on independent appraisal.
NOTE 6. OTHER ASSET AND RELATED REGULATORY LIABILITY.
This amount reflects the recognition of an other asset and related
regulatory liability for the estimated difference between Connecticut Energy's,
CMP Group's, CTG Resources's and Berkshire Energy's net pension and other
postretirement benefit obligations and the previously recognized asset or
liability.
NOTE 7. GOODWILL.
This amount reflects the recognition of: (1) an amount of goodwill equal to
the excess of the estimated purchase price of $433.3 million over the estimated
net fair value of the assets and liabilities of Connecticut Energy of
$192.3 million, plus estimated amounts for transaction costs, costs associated
with change in control and employment agreements, and a workforce management
plan, which total $41.4 million; (2) an amount of goodwill equal to the excess
of the estimated purchase price of $957 million over the estimated net fair
value of the assets and liabilities of CMP Group of $542.9 million, plus
estimated transaction costs of $11 million related to the merger; (3) an amount
of goodwill equal to the excess of the estimated purchase price of
$354.6 million over the estimated net fair value of the assets and liabilities
of CTG Resources of $131.7 million, plus estimated transaction costs of
$6.5 million related to the merger; and (4) an amount of goodwill equal to the
excess of the estimated purchase price of $96 million over the estimated net
fair value of the assets and liabilities of Berkshire Energy acquired of
$35.7 million, plus estimated transaction costs of $1 million related to the
merger.
NOTE 8. MERGER-RELATED COSTS.
Energy East, Connecticut Energy, CMP Group, CTG Resources and Berkshire
Energy will incur direct expenses related to the merger, including financial
advisory, legal and accounting fees. The pro forma adjustments include an
estimate for Energy East's merger-related costs of $3 million for
F-5
<PAGE>
Connecticut Energy, $11 million for the CMP Group merger, $6.5 million for the
CTG Resources merger, and $1 million for the Berkshire Energy merger, which are
included in goodwill. Connecticut Energy, CMP Group, CTG Resources and Berkshire
Energy expect to incur approximately $5.5 million, $7.5 million, $5.5 million
and $2 million, of merger-related costs, respectively, which they will expense
as incurred. The actual amount of merger-related costs may differ from the
amounts reflected in the unaudited pro forma combined condensed financial
statements.
NOTE 9. INCOME TAXES.
Income taxes on the pro forma combined condensed income statement have been
based on the statutory rate and adjusted for goodwill, which is not tax
deductible.
NOTE 10. LONG-TERM DEBT.
This amount reflects the issuance of $500 million principal amount of
long-term debt with an assumed interest rate of 8%, the proceeds of which will
be used to fund a portion of the consideration paid to CMP Group, CTG Resources
and Berkshire Energy shareholders. A 1/8 of 1% change in the interest rate will
increase or decrease interest expense $.6 million (See Note 4).
NOTE 11. AMORTIZATION OF GOODWILL.
This amount represents the amortization of goodwill, for financial
accounting purposes, over a 40-year period. The goodwill is not amortizable for
tax purposes.
F-6
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Expenses in connection with the issuance and distribution of the securities
being registered, other than underwriting compensation, are as follows:
<TABLE>
<S> <C>
SEC registration fee........................................ $132,000
Blue Sky fees and expenses.................................. $ 3,500
Accounting services......................................... $ 50,000
Printing expenses........................................... $ 40,000
Trustee fees and expenses................................... $ 10,000
Rating agency fees.......................................... $200,000
Legal fees and expenses..................................... $ 80,000
Miscellaneous............................................... $ 19,500
--------
Total................................................. $535,000
========
</TABLE>
All of the above, except the SEC registration fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Business Corporation Law of the State of New York provides that if a
derivative action is brought against a director or officer, the registrant may
indemnify him against amounts paid in settlement and reasonable expenses,
including attorneys' fees, incurred by him in connection with the defense or
settlement of such action, if such director or officer acted in good faith for a
purpose which he reasonably believed to be in the registrant's best interests,
except that no indemnification shall be made without court approval in respect
of a threatened action, or a pending action settled or otherwise disposed of, or
in respect of any matter as to which such director or officer has been found
liable to the registrant. In a nonderivative action or threatened action, the
Business Corporation Law provides that the registrant may indemnify a director
or officer against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees incurred by him in defending such action if
such director or officer acted in good faith for a purpose which he reasonably
believed to be in the best interests of the registrant.
Under the Business Corporation Law, a director or officer who is successful,
either in a derivative or nonderivative action, is entitled to indemnification
as outlined above. Under any other circumstances, such director or officer may
be indemnified only if certain conditions specified in the Business Corporation
Law are met. The indemnification provisions of the Business Corporation Law are
not exclusive of any other rights to which a director or officer seeking
indemnification may be entitled pursuant to the provisions of the certificate of
incorporation or the by-laws of a corporation or, whether authorized by such
certificate of incorporation or by-laws, pursuant to a shareholders' resolution,
a directors' resolution or an agreement providing for such indemnification.
The above is a general summary of certain provisions of the Business
Corporation Law and is subject, in all cases, to the specific and detailed
provisions of Sections 721-725 of the Business Corporation Law.
The registrant's By-Laws provide that to the extent not prohibited by law,
the registrant shall indemnify each person made, or threatened to be made, a
party to any civil or criminal action or proceeding by reason of the fact that
he, or his testator or intestate, (i) is or was a director or officer of the
registrant or (ii) is or was serving any other corporation of any type or kind,
domestic or
II-1
<PAGE>
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, in any capacity at the registrant's request.
The registrant's By-Laws also provide, among other things, that:
(1) no indemnification shall be made to or on behalf of any director or
officer, if a judgment or other final adjudication adverse to the director
or officer establishes that his acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled;
(2) the rights to indemnification and advancement of defense expenses
granted by or pursuant to the By-Laws shall not limit or exclude, but shall
be in addition to, any other rights which may be granted by or pursuant to
any statute, certificate of incorporation, by-law, resolution or agreement;
and
(3) the registrant may, with the approval of its Board of Directors,
enter into an agreement with any person who is, or is about to become, a
director or officer of the registrant, or who is serving, or is about to
serve, at the request of the registrant, as a director, officer, or in any
other capacity, any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which agreement may provide for indemnification of such
person and advancement of defense expenses to such person upon such terms,
and to the extent, not prohibited by law.
The registrant has insurance policies indemnifying its directors and
officers against certain obligations that may be incurred by them, subject to
certain retention and co-insurance provisions.
ITEM 16. EXHIBITS
See Exhibit Index.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
II-2
<PAGE>
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of a
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the registrant's certificate of incorporation, by-laws,
the New York Business Corporation Law, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on April 14, 2000.
<TABLE>
<S> <C> <C>
ENERGY EAST CORPORATION
By: /s/ FRANK LEE
-----------------------------------------
Frank Lee
ATTORNEY-IN-FACT
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on April 14, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Principal Executive, Financial and Accounting
Officer:
*
------------------------------------------- Chairman and Director
Wesley W. von Schack
Directors:
*
------------------------------------------- Director
Richard Aurelio
*
------------------------------------------- Director
James A. Carrigg
*
------------------------------------------- Director
Alison P. Casarett
*
------------------------------------------- Director
Joseph J. Castiglia
*
------------------------------------------- Director
Lois B. DeFleur
*
------------------------------------------- Director
Paul L. Gioia
*
------------------------------------------- Director
Ben E. Lynch
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
*
------------------------------------------- Director
John M. Keeler
*
------------------------------------------- Director
Walter G. Rich
/s/ FRANK LEE
------------------------------------------- As attorney-in-fact for the officers and
Frank Lee directors marked by an asterisk
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION METHOD OF FILING
- ----------- --------------------------------------------------- --------------------------
<C> <S> <C>
1 Form of Underwriting Agreement. Filed herewith.
4-1 Form of Indenture from Energy East to The Chase Filed herewith.
Manhattan Bank, as Trustee.
4-2 Form of Debt Security. Included in Exhibit 4-1.
5 Opinion of Huber Lawrence & Abell with respect to Filed herewith.
the legality of the securities registered
hereunder.
12 Computation of Ratio of Earnings to Fixed Charges. Filed herewith.
23-1 Consent of Huber Lawrence & Abell. Included in opinion filed
as Exhibit 5.
23-2 Consent of PricewaterhouseCoopers LLP. Filed herewith.
23-3 Consent of PricewaterhouseCoopers LLP. Filed herewith.
24-1 Powers of Attorney of Directors and Officers. Filed herewith.
24-2 Power of Attorney of the Registrant. Filed herewith.
25 Statement of Eligibility and Qualification of The Filed herewith.
Chase Manhattan Bank as Trustee under the
Indenture.
</TABLE>
<PAGE>
Exhibit 1
ENERGY EAST CORPORATION
Debt Securities
-----------
Underwriting Agreement
................. , 2000
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Energy East Corporation, a New York corporation (the
"Company"), proposes 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 (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 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 representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company 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,
<PAGE>
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 Underwriters 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 represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No 333-....) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect to the
Initial Registration Statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order suspending
the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement, any post-effective amendment thereto and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective but excluding Form T-1, each as
amended at the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter collectively called
the "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 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 the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case
2
<PAGE>
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 Initial Registration Statement shall be deemed to
refer to and include any document filed pursuant to Sections 13(a) or
15(d) of the Exchange Act after the effective date of the Initial
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 filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) Except for the order of the Commission with respect to the
effectiveness of the Registration Statement No. 333-_____ referred to in
paragraph (a) above, no other approval, authorization, consent,
certificate or order of any federal commission or regulatory authority is
required with respect to the transactions contemplated by this Agreement;
and a copy of such order heretofore entered by the Commission has been or
will be delivered to the Underwriters;
(c) 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 requirements of the Act or
the Exchange Act, as applicable, and the 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 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
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 Prospectus as amended or supplemented relating to such
Securities;
(d) 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 requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the 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 Prospectus and any amendment or supplement thereto,
contain an untrue
3
<PAGE>
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 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 Prospectus as amended or supplemented relating to such
Securities;
(e) The consolidated financial statements filed with or as part of
the Registration Statement present fairly the financial position, results
of operations and changes in financial position of the Company and its
subsidiaries at the dates and for the periods indicated, all in conformity
with generally accepted accounting principles; and the Company has no
material contingent obligation which is not disclosed in the Registration
Statement and the Prospectus;
(f) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any 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, which would result in any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other than
pursuant to the Company's common stock repurchase program, or its dividend
reinvestment and other common stock plans), or long-term debt of the
Company or any of its Significant Subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(g) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(h) Each Significant Subsidiary of the Company, as that term is
defined in Rule 1-02 of Regulation S-X of the Rules and Regulations, has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
power and authority (corporate and other) to own its property and to
conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent
4
<PAGE>
that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a
whole; except as described in the Registration Statement and the
Prospectus, each Significant Subsidiary of the Company holds all material
licenses, certificates and permits from governmental authorities necessary
for the conduct of its business; and a list of the Company's subsidiaries
that are not Significant Subsidiaries as of the date hereof is attached as
Part II of Annex ___.
(i) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(j) The Securities have been duly authorized, 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 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 and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws or judicial decisions
of general applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether enforcement is considered
in a proceeding at law or in equity); and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(k) The issue and sale of the Securities and the compliance by the
Company 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 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 is a party
or by which the Company is bound, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws
of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its properties; 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 Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture, except such approvals
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, orders, 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;
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(l) The statements set forth in the Prospectus under the captions
"Description of Securities" and ["Description of Notes"], insofar as they
purport to constitute a summary of the terms of the Securities, and under
the caption "Plan of Distribution", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(m) Neither the Company nor any of its Significant Subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contracts, indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(o) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(q) PricewaterhouseCoopers LLP, who have certified certain
consolidated financial statements of the Company, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(r) Other than as set forth in the Prospectus, the Company and its
Significant Subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated
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Securities, the several Underwriters propose to offer such Designated Securities
for sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, 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 to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance 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 agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such 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 Prospectus as
amended or supplemented after the date of the Pricing Agreement relating
to such Securities and prior to the Time of Delivery for such Securities
which shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery
and 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
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 Securities, of the suspension of the qualification of such 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 Securities or
suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such
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<PAGE>
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 Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York business
day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City as
amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented 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 Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request 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 Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders 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)
under the Act), an earnings statement of the Company 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 Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) 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 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; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities
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<PAGE>
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the 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,
closing documents (including any compilations thereof) 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 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, and the fees and
disbursements of counsel for the Underwriters in connection with, 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 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 its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 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 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 the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented 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; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; 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 written opinion or opinions (a draft of each such opinion
is attached as Annex II(a) hereto), dated the Time of Delivery for such
Designated Securities, with respect to the matters covered in paragraphs (i),
(v), (vi), (vii), (xi) and (xiii) of subsection (c) below as well as such 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;
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<PAGE>
(c) Counsel for the Company satisfactory to the Representatives shall have
furnished to the Representatives their written opinion (a draft of such opinion
is attached as Annex II(b) hereto), dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the state in which it is incorporated;
each Significant Subsidiary has the power and authority (corporate
and other) to own its property and conduct its business as described
in the Prospectus as amended or supplemented and is duly qualified
to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as
a whole;
(iii) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid
and non-assessable;
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(vi) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Designated Securities
and the Indenture conform to the descriptions thereof in the
Prospectus as amended or supplemented;
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<PAGE>
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws or judicial decisions of
general applicability relating to or affecting creditors' rights and
to general equity principles (regardless of whether enforcement is
considered in a proceeding at law or in equity); and the Indenture
has been duly qualified under the Trust Indenture Act;
(viii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated
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 known to such counsel to which the Company
is a party or by which the Company is bound, nor will such actions
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company;
(ix) 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 of the transactions contemplated
by this Agreement or such Pricing Agreement or the Indenture, except
such as have been obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, orders, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(x) Neither the Company nor any of its Significant
Subsidiaries is in violation of its By-laws or Certificate of
Incorporation or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan agreement,
lease or other instrument to which it is a party;
(xi) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Securities" and
["Description of Notes"], insofar as they purport to constitute a
summary of the terms of the Securities, and under the caption "Plan
of Distribution", insofar as they purport to describe the provisions
of the documents referred to therein, are accurate, complete and
fair;
(xii) The Company is not an "investment company", as such term
is defined in the Investment Company Act;
(xiii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements, including the notes thereto,
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<PAGE>
and related schedules therein, as to which such counsel need express
no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, 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, in the case of other documents which were filed under the Act or
the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading;
(xiv) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements, including the notes
thereto, and related schedules therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (xi) of this Section 7(c), they have no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements, including the notes
thereto, and related schedules therein, as to which such counsel
need express no opinion) 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, as of its date, the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements,
including the notes thereto, and related schedules therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as
of the Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements, including the notes thereto,
and related schedules therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement as amended or supplemented required to be
filed or any contracts or other documents of a character required to
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<PAGE>
be filed as an exhibit to such Registration Statement or required to
be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus, each as amended or supplemented, which
are not filed or incorporated by reference or described as required;
and
(xv) No approval, authorization, consent, certificate or order
of any federal commission or regulatory authority is required with
respect to the transactions contemplated by this Agreement and the
Prospectus as amended or supplemented except for the order of the
Commission with respect to the effectiveness of Registration
Statement No. 333-______ (being the order of the Commission referred
to in subsection (a) of Section 2 of this Agreement.
(d) Counsel for the Company satisfactory to the Representatives in the
respective states of New York and Connecticut, shall each have furnished to the
Representatives their written opinion (drafts of such opinions are attached as
Annexes II(_) and II(_) hereto), dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to the
effect that:
(i) The Company is in good standing under the laws of such
state or commonwealth, with power and authority (corporate and
other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented and is duly qualified
to transact business and is in good standing in such state or
commonwealth, except to the extent such failure to be so qualified
or be in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(ii) The Company is not a public utility or public service
company subject to the jurisdiction of the state commission or
regulatory authority in the respective state or commonwealth as a
public utility or public service company;
(iii) No consent, approval, authorization, order, registration
or qualification of or with any court, governmental agency or
regulatory authority of such state or commonwealth is required for
the issue and sale of the Designated Securities or the consummation
by the Company of the transactions contemplated by this Agreement or
such Pricing Agreement or the Indenture, except such consents,
approvals, authorizations, orders, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters; and
(iv) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a violation of any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body in such state or commonwealth having
jurisdiction over the Company;
(e) On the date of the Pricing Agreement for such Designated Securities
and at the Time of Delivery for such Designated Securities, the independent
accountants of the Company
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who have certified the consolidated financial statements of the Company included
or incorporated by reference in the Registration Statement shall have furnished
to the Representatives a letter, dated the date of the Pricing Agreement and a
letter dated such Time of Delivery, respectively, to the effect set forth in
Annex II hereto, and with respect to such letter dated such Time of Delivery, as
to such other matters as the Representatives may reasonably request and in form
and substance satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated Securities, any 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, which would result in any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, and (ii) since the respective dates as
of which information is given in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated Securities there shall
not have been any change in the capital stock (other than pursuant to the
Company's common stock repurchase program, or its dividend reinvestment and
other common stock plans), or long-term debt of the Company or any of its
Significant Subsidiaries or 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
Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock 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 any of the Company's
debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities on the
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terms and in the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Securities;
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York business
day next succeeding the date of this Agreement; and
(j) 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 satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives may reasonably
request.
8. (a) The Company will indemnify and hold harmless each Underwriter
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 an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented 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, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company 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 Prospectus as amended or supplemented 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
15
<PAGE>
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company 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 omission so to 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 satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying 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. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the 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 a 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 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 or if the indemnified party failed to give the notice required
under subsection (c) above, 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 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 on
16
<PAGE>
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 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 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 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 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 under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
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 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
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties 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 that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of
17
<PAGE>
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 Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made 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 as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company 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.
(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 as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company 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 non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
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 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 any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
18
<PAGE>
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 the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
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.
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 shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: 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 and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company 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.
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.
19
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us 6 counterparts hereof.
Very truly yours,
ENERGY EAST CORPORATION
By:.................................
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Walburg Dillon Read LLC
By:....................................
(Goldman, Sachs & Co.)
20
<PAGE>
ANNEX I
Pricing Agreement
Goldman, Sachs & Co.,
Warburg Dillon Read LLC
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
____, 2000
Ladies and Gentlemen:
Energy East Corporation, a New York corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated . . . . . . . . . . . ., 2000 (the "Underwriting Agreement"),
[between the Company on the one hand and Goldman, Sachs & Co. and Warburg Dillon
Read LLC on the other hand], to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). 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 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 Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the 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.
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
<PAGE>
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
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,
ENERGY EAST CORPORATION
By:.................................
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Warburg Dillon Read LLC
By: ......................................
(Goldman, Sachs & Co.)
2
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ----------
Goldman, Sachs & Co........................................ $
Warburg Dillon Read LLC....................................
[Names of other Underwriters, if any]......................
---------
Total......................................... $
=========
3
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, [plus accrued
interest [, if any,] from to ] [and accrued amortization[, if
any,] from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, [plus accrued
interest [,if any,] from
to ] [and accrued amortization[, if any,] from to ]
Form of Designated Securities:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to
be made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
a.m. (New York City time), , 20
Indenture:
Indenture dated , 20 , between the Company and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 20..]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
4
<PAGE>
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
Redemption
Year Price
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the election of
the Company, at a redemption price equal to the principal amount thereof,
plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Designated Securities on in each of the
years through at 100% of their principal amount plus accrued
interest[, together with [cumulative] [noncumulative] redemptions at the
option of the Company to retire an additional [$ ] principal amount of
Designated Securities in the years through at 100% of their
principal amount plus accrued interest.]
5
<PAGE>
[If Designated Securities are extendable debt securities, insert--
Extendable provisions:
Designated Securities are repayable on ________ , [insert date and years
___________ ], at the option of the holder, at their principal
amount with accrued interest. The initial annual interest rate will be %,
and thereafter the annual interest rate will be adjusted on , and to a
rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through [and thereafter will be
adjusted [monthly] [on each ________,_________ , and______________ ] [to
an annual rate of ___% above the average rate for _______-year [month]
[securities] [certificates of deposit] issued by and ____________ [insert
names of banks _________ ]. ] [and the annual interest rate [thereafter]
[from ________ through ____________ ] will be the interest yield
equivalent of the weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess, if any, of (i)
the then current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) the then current interest yield
equivalent of the weekly average per annum market discount rate for -month
Treasury bills); [from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
Defeasance provisions:
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms] :
6
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related rules and regulations; and,
if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data,
pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representative
or representatives of the Underwriters (the "Representatives") such term
to include an Underwriter or Underwriters who act without any firm being
designated as its or their representatives and are attached to such
letters;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which are attached to such letters; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below 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, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not 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;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years included or
incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
<PAGE>
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations adopted
by the Commission, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and
2
<PAGE>
the rules and regulations adopted by the Commission thereunder or
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
3
<PAGE>
Exhibit 4.1
===============================================================================
ENERGY EAST CORPORATION
and
THE CHASE MANHATTAN BANK,
AS TRUSTEE
INDENTURE
Dated as of ______________, 2000
-------------------
Debt Securities
===============================================================================
<PAGE>
TABLE OF CONTENTS
----------
Page
----
RECITALS OF THE COMPANY.....................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........1
SECTION 101. Definitions....................................................1
Act...................................................................2
Affiliate.............................................................2
Authenticating Agent..................................................2
Board of Directors....................................................2
Board Resolution......................................................2
Business Day..........................................................2
Commission............................................................2
Company...............................................................3
Company Order or Company Request......................................3
Corporate Trust Office................................................3
corporation...........................................................3
Defaulted Interest....................................................3
Depositary............................................................3
Discharged............................................................3
Event of Default......................................................3
Exchange Act..........................................................4
Global Security.......................................................4
Holder................................................................4
Indebtedness..........................................................4
Indenture.............................................................4
Indexed Security......................................................5
interest..............................................................5
Interest Payment Date.................................................5
Lien..................................................................5
Maturity..............................................................5
Officers' Certificate.................................................5
Opinion of Counsel....................................................5
Original Issue Discount Security......................................6
Outstanding...........................................................6
Paying Agent..........................................................7
Periodic Offering.....................................................7
Person................................................................7
Place of Payment......................................................7
Predecessor Security..................................................7
Redemption Date.......................................................7
Redemption Price......................................................7
Regular Record Date...................................................7
Repayment Price.......................................................8
Responsible Officer...................................................8
Security..............................................................8
Security Register and Security Registrar..............................8
Special Record Date...................................................8
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Page
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Stated Maturity.......................................................8
Subsidiary............................................................8
Tranche...............................................................8
Trustee...............................................................9
Trust Indenture Act...................................................9
U.S. Government Obligations...........................................9
Vice President........................................................9
SECTION 102. Compliance Certificates and Opinions...........................9
SECTION 103. Form of Documents Delivered to Trustee........................10
SECTION 104. Acts of Holders...............................................10
SECTION 105. Notices, Etc., to Trustee and Company.........................12
SECTION 106. Notice to Holders; Waiver.....................................13
SECTION 107. Conflict with Trust Indenture Act.............................13
SECTION 108. Effect of Headings and Table of Contents......................13
SECTION 109. Successors and Assigns........................................13
SECTION 110. Separability Clause...........................................13
SECTION 111. Benefits of Indenture.........................................14
SECTION 112. Governing Law.................................................14
SECTION 113. Legal Holidays................................................14
ARTICLE TWO SECURITY FORMS................................................14
SECTION 201. Forms Generally...............................................14
SECTION 202. Form of Face of Security......................................15
SECTION 203. Form of Reverse of Security...................................17
SECTION 204. Form of Trustee's Certificate of Authentication...............21
ARTICLE THREE THE SECURITIES...............................................21
SECTION 301. Amount Unlimited; Issuable in Series..........................21
SECTION 302. Denominations.................................................25
SECTION 303. Execution, Authentication, Delivery and Dating................25
SECTION 304. Temporary Securities..........................................27
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SECTION 305. Registration, Registration of Transfer and Exchange...........27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..............28
SECTION 307. Payment of Interest; Interest Rights Preserved................29
SECTION 308. Persons Deemed Owners.........................................30
SECTION 309. Cancellation..................................................31
SECTION 310. Computation of Interest.......................................31
SECTION 311. Global Securities.............................................31
SECTION 312. Periodic Offering of Securities...............................32
SECTION 313. CUSIP Numbers.................................................33
ARTICLE FOUR SATISFACTION AND DISCHARGE....................................33
SECTION 401. Satisfaction and Discharge of Indenture.......................33
SECTION 402. Application of Trust Money....................................34
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
any Series...................................................35
ARTICLE FIVE REMEDIES......................................................37
SECTION 501. Events of Default.............................................37
SECTION 502. Acceleration of Maturity; Rescission and Annulment............38
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee...................................................39
SECTION 504. Trustee May File Proofs of Claim..............................40
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...41
SECTION 506. Application of Money Collected................................41
SECTION 507. Limitation on Suits...........................................42
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................42
SECTION 509. Restoration of Rights and Remedies............................42
SECTION 510. Rights and Remedies Cumulative................................43
SECTION 511. Delay or Omission Not Waiver..................................43
SECTION 512. Control by Holders............................................43
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SECTION 513. Waiver of Past Defaults.......................................43
SECTION 514. Undertaking for Costs.........................................44
SECTION 515. Waiver of Stay or Extension Laws..............................44
ARTICLE SIX THE TRUSTEE...................................................45
SECTION 601. Certain Duties and Responsibilities...........................45
SECTION 602. Notice of Defaults............................................46
SECTION 603. Certain Rights of Trustee.....................................46
SECTION 604. Not Responsible for Recitals or Issuance of Securities........47
SECTION 605. May Hold Securities...........................................48
SECTION 606. Money Held in Trust...........................................48
SECTION 607. Compensation and Reimbursement................................48
SECTION 608. Conflicting Interests.........................................48
SECTION 609. Corporate Trustee Required; Eligibility.......................49
SECTION 610. Resignation and Removal; Appointment of Successor Trustee.....49
SECTION 611. Acceptance of Appointment by Successor........................50
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...51
SECTION 613. Preferential Collection of Claims Against Company.............52
SECTION 614. Authenticating Agents.........................................52
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............53
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.....53
SECTION 702. Preservation of Information; Communications to Holders........54
SECTION 703. Reports by Trustee............................................55
SECTION 704. Reports by Company............................................56
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER..........57
SECTION 801. Company May Consolidate, etc., Only on Certain Terms..........57
SECTION 802. Successor Person to be Substituted............................57
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ARTICLE NINE SUPPLEMENTAL INDENTURES.......................................58
SECTION 901. Supplemental Indentures without Consent of Holders............58
SECTION 902. Supplemental Indentures with Consent of Holders...............59
SECTION 903. Execution of Supplemental Indentures..........................60
SECTION 904. Effect of Supplemental Indentures.............................60
SECTION 905. Conformity with Trust Indenture Act...........................60
SECTION 906. Reference in Securities to Supplemental Indentures............60
ARTICLE TEN COVENANTS.....................................................61
SECTION 1001. Payment of Principal, Premium and Interest...................61
SECTION 1002. Maintenance of Office or Agency..............................61
SECTION 1003. Money for Securities Payments to Be Held in Trust............61
SECTION 1004. Corporate Existence..........................................63
SECTION 1005. Maintenance of Properties....................................63
SECTION 1006. Maintenance of Insurance.....................................63
SECTION 1007. Limitation on Secured Debt...................................63
SECTION 1008. Statement by Officers as to Default..........................65
SECTION 1009. Defeasance of Certain Obligations............................65
SECTION 1010. Waiver of Certain Covenants..................................67
SECTION 1011. Further Assurances...........................................67
ARTICLE ELEVEN REDEMPTION OF SECURITIES...................................67
SECTION 1101. Applicability of Article.....................................67
SECTION 1102. Election to Redeem; Notice to Trustee........................67
SECTION 1103. Selection by Trustee of Securities to Be Redeemed............68
SECTION 1104. Notice of Redemption.........................................68
SECTION 1105. Deposit of Redemption Price..................................69
SECTION 1106. Securities Payable on Redemption Date........................70
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SECTION 1107. Securities Redeemed in Part..................................70
ARTICLE TWELVE SINKING FUNDS...............................................70
SECTION 1201. Applicability of Article.....................................70
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........71
SECTION 1203. Redemption of Securities for Sinking Fund....................71
ARTICLE THIRTEEN MISCELLANEOUS.............................................72
SECTION 1301. Counterparts.................................................72
TESTIMONIUM................................................................73
SIGNATURE AND SEALS........................................................73
vi
<PAGE>
INDENTURE, dated as of __________, 2000, between ENERGY EAST
CORPORATION, a corporation duly organized and existing under the laws of the
State of New York (the "Company"), having its principal office at One Canterbury
Green, Stamford, Connecticut 06904 and THE CHASE MANHATTAN BANK, a New York
banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of certain of its
unsecured senior debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Section have the meanings assigned to
them in this Section and include the plural as well as the singular;
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
<PAGE>
(iv) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
The following terms have the following meanings:
"Act", when used with respect to any Holder, has the meaning
specified in Section 104 hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate and deliver Securities of one or more series on behalf of the
Trustee pursuant to Section 614 hereof.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means a day other than (i) a Saturday or a Sunday, (ii) a day on which banking
institutions in that Place of Payment are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee is closed for business.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
2
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Order" or "Company Request" means, respectively, a written
order or request signed in the name of the Company by its Chairman, any
Vice-Chairman, its President, any Executive or Senior Vice President or any Vice
President, and by its Treasurer or any Assistant Treasurer, its Controller, its
Assistant Controller, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business is principally administered,
which at the date hereof is 450 West 33rd Street, New York, New York 10001,
Attention: Capital Markets Fiduciary Services.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307
hereof.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301 hereof, which must be a clearing agency registered under the
Exchange Act, and, if so provided pursuant to Section 301 hereof with respect to
the Securities of a series, any successor to such Person. If at any time there
is more than one such Person, "Depositary" shall mean, with respect to any
series of Securities, the qualifying entity which has been appointed with
respect to the Securities of that series.
"Discharged" means, with respect to the Securities of any series,
the discharge of the entire Indebtedness represented by, and obligations of the
Company under, the Securities of such series and the satisfaction of all the
obligations of the Company under this Indenture relating to the Securities of
such series, except (A) the rights of Holders of the Securities of such series
to receive, from the trust fund described in Section 403 hereof, payment of the
principal of and interest and premium, if any, on the Securities of such series
when such payments are due, (B) the Company's obligations with respect to the
Securities of such series with respect to registration, transfer, exchange and
maintenance of a Place of Payment, (C) the rights, powers, trusts, duties,
protections and immunities of the Trustee under this Indenture, and (D) the
other rights and obligations set forth in Section 403(a) through (d) hereof.
"Event of Default" has the meaning specified in Section 501 hereof.
3
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended
and any statute successor thereto, in each case as amended from time to time.
"Global Security" means a Security evidencing all or part of a
series of Securities, issued to the Depositary or a nominee thereof for such
series in accordance with Section 301(16).
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means, with respect to any Person (without
duplication), (a) any liability of such Person (1) for borrowed money or under
any reimbursement obligation relating to a letter of credit, financial bond or
similar instrument or agreement, (2) evidenced by a bond, note, debenture or
similar instrument or agreement (including a purchase money obligation) given in
connection with the acquisition of any business, properties or assets of any
kind (other than a trade payable or a current liability arising in the ordinary
course of business or a performance bond or similar obligation), or (3) for the
payment of money relating to any obligations under any capital lease of real or
personal property; (b) any liability of others described in the preceding clause
(a) that the Person has guaranteed or that is otherwise its legal liability to
the extent of 20% of the principal amount of Indebtedness so guaranteed or that
is otherwise its legal liability until such time as the guarantor shall be
obligated to make any payment in respect of such guaranty or legal liability;
and (c) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (a) and (b)
above. For the purpose of determining any particular amount of Indebtedness
under this definition, guarantees of (or obligations with respect to letters of
credit or financial bonds supporting) Indebtedness otherwise included in the
determination of such amount shall not be included.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301. If at any time
more than one Person is acting as Trustee under this instrument due to the
appointment of one or more separate Trustees for any one or more separate series
of Securities pursuant to Section 610, "Indenture" shall mean, with respect to
such series of Securities for which any such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms
4
<PAGE>
adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security " means any Security as to which the amount of
payments of principal, premium, if any, and/or interest, if any, due thereon is
determined with reference to the rate of exchange between the currency or
currency unit in which the Security is denominated and any other specified
currency or currency unit, to the relationship between two or more currencies or
currency units, to the price of one or more specified securities or commodities,
to one or more securities or commodities exchange indices or other indices or by
other similar methods or formulas, all as specified in accordance with Section
301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means any lien, deed of trust, pledge or security interest of
any kind or nature whatsoever.
"Maturity", when used with respect to any Security, means the date
on which the principal of or an installment of principal of such Security
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Company's
Chairman, any Vice-Chairman, its President, any Executive or Senior Vice
President, any Vice President, and by its Treasurer, any Assistant Treasurer,
its Controller, its Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee. One of the officers signing the
Officers' Certificate given pursuant to Section 1008 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or counsel to the Company, or may be other counsel reasonably
acceptable to the Trustee.
5
<PAGE>
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502
hereof.
"Outstanding", when used with respect to Securities of any series,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or U.S. Governmental Obligations (to the extent provided
in Article Four) in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company acts as
its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Securities as to which Defeasance has been effected
pursuant to Section 403; and
(iv) Securities which have been paid pursuant to Section 306
hereof or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Outstanding Securities have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder, (a) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 hereof, (b) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable, the principal
amount of such Security which shall be deemed to be Outstanding shall be the
amount as specified or determined as contemplated by Section 301(24), (c) the
principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding as of any date shall be
the U.S. dollar equivalent, determined as of such date in the manner provided as
contemplated by Section 301(9), of the principal amount of such Security (or, in
the case of a Security described in clause (a) or (b) above, of the amount
determined as provided in such clause), and (d) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned as described in (d) above which have been
pledged in good faith may be regarded as Outstanding if the pledgee
6
<PAGE>
certifies to the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate or
rates of interest), if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the Securities of that series are payable as specified
in or as contemplated by Section 301 hereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 hereof in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301 hereof.
7
<PAGE>
"Repayment Price", when used with respect to any Security to be
repaid at the option of the Holder, means the price specified in such Security
or pursuant to this Indenture at which it is to be repaid pursuant to such
Security.
"Responsible Officer", when used with respect to the Trustee, means
the Chairman of the Board, the President or any other officer or assistant
officer of the Trustee assigned by the Trustee to administer corporate trust
matters.
"Security" has the meaning stated in the first recital of this
Indenture and more particularly means any Security authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Security" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean any
Security authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305 hereof.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307 hereof.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal or installment of principal
of such Security or interest is due and payable.
"Subsidiary" means, with respect to any Person, another Person, an
amount of the voting securities or other voting ownership or voting partnership
interests of which sufficient to elect at least a majority of its board of
directors or other governing body (or, if there are not such voting interests,
50% or more of the equity interest of which) is owned directly or indirectly by
such first Person.
"Tranche" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount, date of
issuance and/or interest rate.
8
<PAGE>
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended, "Trust Indenture
Act" shall mean, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means (i) direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed by the United States, and (ii) bonds, debentures, notes or other
evidences of indebtedness issued by any of the following federal agencies:
Federal Bank for Cooperatives, Federal National Mortgage Association;
Export-Import Banks of the United States; Federal Land Banks; Federal
Intermediate Credit Banks; Federal Home Loan Banks, the Government National
Mortgage Association and the Federal Home Loan Mortgage Association; and shall
also include in each case a depository receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of a holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president" .
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee (a) an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and (b) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced
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thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601 hereof) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section 104.
Without limiting the generality of the foregoing, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, pursuant to Section 301 hereof, a Holder, including a Depositary that is
a Holder of a Global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders, and a Depositary that is a Holder of a Global
Security may provide its proxy or proxies to the beneficial owners of interests
in any such Global Security through such Depositary's standing instructions and
customary practices.
(b) The fact and date of the execution by any Person of any such
instrument, writing or proxy may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument, writing or proxy acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument, writing or proxy, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may set any day as the record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
make any request or demand, or give any authorization, direction, notice,
consent or waiver, or take any other action, provided or permitted by this
Indenture to be made, given or taken by Holders of Securities of such series.
With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to take
relevant action, whether or not such Holders remain Holders after such record
date. With regard to any action that may be taken hereunder only by Holders of a
requisite principal amount of Outstanding Securities of any series (or their
duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which no
such action purported to be taken by any Holder shall be effective hereunder
unless taken on or prior to such expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents). On or prior to any expiration date set
pursuant to this paragraph, the Company may, on one or more occasions at its
option,
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extend such expiration date to any later date. Nothing in this paragraph
shall prevent any Holder (or any duly appointed agent thereof) from taking, at
any time, any action contrary to or different from, any action previously taken,
or purported to have been taken, hereunder by such Holder, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, any action to be taken by Holders pursuant to Section 501, 502 or
512 hereof.
Upon receipt by a Responsible Officer of the Trustee of actual
notice of any default described in Section 501 hereof, any declaration of
acceleration, or any rescission and annulment of any such declaration, pursuant
to Section 502 hereof or of any direction in accordance with Section 512 hereof,
a record date shall automatically and without any other action by any Person be
set for the purpose of determining the Holders of Outstanding Securities of the
series entitled to join in such notice, declaration, or rescission and
annulment, or direction, as the case may be, which record date shall be the
close of business on the day the Trustee actually receives such notice,
declaration, rescission and annulment or direction, as the case may be. The
Holders of Outstanding Securities of such series on such record date (or their
duly appointed agent), and only such Persons, shall be entitled to join in such
notice, declaration, rescission and annulment, or direction, as the case may be,
whether or not such Holders remain Holders after such record date; provided
that, unless such notice, declaration, rescission and annulment, or direction,
as the case may be, shall have become effective by virtue of Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents) having joined therein on or prior
to the 90th day after such record date, such notice of default, declaration, or
rescission and annulment or direction given or made by the Holders, as the case
may be, shall automatically and without any action by any Person be canceled and
of no further effect. Nothing in this paragraph shall prevent a Holder (or a
duly appointed agent thereof) from giving, before or after the expiration of
such 90-day period, a notice of default, a declaration of acceleration, a
rescission and annulment of a declaration of acceleration or a direction in
accordance with Section 512 hereof, contrary to or different from, or, after the
expiration of such period, identical to, a previously given notice, declaration,
rescission and annulment, or direction, as the case may be, that has been
canceled pursuant to the proviso to the preceding sentence, in which event a new
record date in respect thereof shall be set pursuant to this paragraph.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Treasurer or at any other
address previously furnished in writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
principles of conflicts of law except Section 5-1401 of the New York General
Obligations Law.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or date of repayment at the option of a Holder of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest, if any,
or principal (and premium, if any) need not be made on such date at such Place
of Payment, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, at the Stated Maturity or on the date of repayment, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, Stated Maturity or date of repayment, as the case
may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 hereof for the
authentication and delivery of such Securities.
The Trustee's certificate of authentication shall be in
substantially the form set forth in this Article.
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The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
[If the Security is to be a Global Security, insert - This Security
is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee of a Depositary. This
Security is exchangeable for Securities registered in the name of a Person other
than the Depositary or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer of
this Security as a whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Global Security is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any definitive Security is issued in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
ENERGY EAST CORPORATION
[Title of the Security]
CUSIP No. __________ $__________________
No. ________________
ENERGY EAST CORPORATION, a corporation duly organized and existing
under the laws of the State of New York (the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________________________________, or
registered assigns, the principal sum of ________________________ Dollars on
_________________________________ [If the Security is to bear interest prior to
Maturity, insert - , and to pay interest thereon from ________, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on ____________ and ___________ in each year, commencing
________, at the rate per annum provided in the title hereof, until the
principal hereof is paid or made available for payment [If applicable, insert -
, and, subject to the terms of the Indenture, at the rate per annum provided in
the title hereof on any overdue principal and premium and (to the extent that
the payment of such interest shall be legally enforceable) on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the _______ or ________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close
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of business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity, insert -
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of [yield to maturity]% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such default in payment to the date payment of such principal
has been made or duly provided for. Interest on any overdue principal or premium
shall be payable on demand. Any such interest on any overdue principal or
premium that is not so paid on demand shall bear interest at the rate of [yield
to maturity]% per annum (to the extent that the payment of such interest shall
be legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and interest, if
any, on this Security will be made at the office or agency of the Company
maintained for that purpose in ________, in [such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts - or state other currency] [If this Security is not a
Global Security, insert - ; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register] [If this
Security is a Global Security, insert applicable manner of payment].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, Energy East Corporation has caused this
instrument to be duly executed under its corporate seal.
Dated:
ENERGY EAST CORPORATION
By______________________________________
[Name]
[Title]
[If more than one
officer is to sign - By______________________________________
[Name]
[Title]]
Attest:
By:_________________________
[Name]
[Title]
SECTION 203. Form of Reverse of Security.
ENERGY EAST CORPORATION
[Title of the Security]
This Security is one of a duly authorized issue of securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture, dated as of __________, 2000, as amended and supplemented from
time to time (the "Indenture"), between the Company and The Chase Manhattan
Bank, a New York banking corporation, as Trustee (the "Trustee", which term
includes any successor trustee under the Indenture), as to which the Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to $________].
[If applicable, insert - This Security is not subject to redemption
prior to maturity.] [If applicable, insert - The Securities of this series are
subject to redemption upon not less than 30 or more than 60 days' notice by mail
to the Holders of such Securities at their addresses in the Security Register
for such series, [if applicable, insert - (1) on __________ in any year
commencing with the year ____ and ending with the year ____ through operation of
the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after ___________, 19__], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
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If redeemed [on or before _____________, ___%, and if redeemed]
during the 12-month period beginning ___________, of the years indicated:
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company
may not, prior to _________, redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ___% per annum.]
[If applicable insert - The sinking fund for this series provides
for the redemption on _________ in each year beginning with the year ____ and
ending with the year ____ of [not less than] __________ [("mandatory sinking
fund") and, at the option of the Company, not more than __________] aggregate
principal amount of Securities of this series. [Securities of this series
acquired or redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made in the order in which they become due.]]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
The Indenture contains provisions for defeasance of (a) the entire
Indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security, insert
- - If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert - If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series (the
"Acceleration Amount") may be declared due and payable in the manner and with
the effect provided in the Indenture. In case of a declaration of acceleration
on or before ________, __ and on _____________ in any year, the Acceleration
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Amount per ______ principal amount at Stated Maturity of the Securities shall be
equal to the amount set forth in respect of such date below:
Acceleration Amount per
____________ principal
Date of declaration amount at Stated Maturity
and in case of a declaration of acceleration on any other date, the
Acceleration Amount shall be equal to the Acceleration Amount as of the next
preceding date set forth in the table above, plus accrued original issue
discount (computed in accordance with the method used for calculating the
amount of original issue discount that accrues for Federal income tax
purposes) from such next preceding date to the date of declaration at the
yield to maturity. For the purpose of this computation the yield to maturity
is ___%. Upon payment (i) of the Acceleration Amount so declared due and
payable and (ii) of interest on any overdue principal and overdue interest
(in each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of the
payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a class). The
Indenture contains provisions permitting the Holders of not less than a majority
in aggregate principal amount of the Securities of all series with respect to
which a default under the Indenture shall have occurred and be continuing
(voting as one class), on behalf of the Holders of all Securities of all such
series, to waive certain past defaults under the Indenture and their
consequences. The Indenture also permits the Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities of any series, on
behalf of the Holders of all Securities of such series, to waive compliance with
certain provisions of the Indenture. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
[If this Security is a Global Security, insert - This Security shall
be exchangeable for Securities registered in the names of Persons other than the
Depositary with respect to such series or its nominee only as provided in this
paragraph. This Security shall be so exchangeable if (x) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or at any time ceases to be a clearing agency registered as such under
the Exchange Act, (y) the Company executes and delivers to the Trustee an
Officers' Certificate providing that this Security shall be so exchangeable or
(z) there shall have occurred and be
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continuing an Event of Default with respect to the Securities of such series.
Securities so issued in exchange for this Security shall be of the same series,
having the same interest rate, if any, and maturity and having the same terms as
this Security, in authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as the Depositary
for such Global Security shall direct.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of [If this Security is a Global Security,
insert - a Security of the series of which this Security is a part] [If this
Security is not a Global Security, insert - this Security] is registrable in the
Security Register, upon surrender of this Security for registration of transfer
at the office or agency of the Company in any place where the principal of (and
premium, if any) and interest, if any, on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $__________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York without regard to principals of conflict of
law except Section 5-1401 of the New York General Obligations Law.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication shall be in the
following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
as Trustee
By_________________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. All Securities of
each series under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Stated Maturity of the Securities of such series.
The Securities may be issued in one or more series. Each series of
Securities shall be created either by or pursuant to a Board Resolution or by or
pursuant to an indenture supplemental hereto. There may also be established in
or pursuant to a Board Resolution and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or pursuant to a
supplemental indenture prior to the issuance of Securities of each such series,
provision for all or any of the following:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906, or 1107
hereof and except for any Securities which, pursuant to Section 303
hereof, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person or Persons (without specific identification) to whom
any interest on the Securities of the series, or any Tranche thereof,
shall be payable, if other than the Person in whose name the Security (or
one or more Predecessor Securities) is registered at the close of business
on the regular Record Date for such interest;
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(4) the date or dates on which the principal of the Securities of
the series, or any Tranche thereof, is payable or the method by which such
date or dates shall be determined, by reference to an index or other fact
or event ascertainable outside of this Indenture or otherwise (without
regard to any provisions for redemption, prepayment, acceleration,
purchase or extension);
(5) the rate or rates at which the Securities of the series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the rate
or rates at which such Securities shall bear interest prior to maturity,
and, if applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or other
means by which such rate or rates shall be determined, by reference to an
index or other fact or event ascertainable outside of this Indenture or
otherwise, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date
and the basis for computation of interest, if other than as provided in
Section 310;
(6) the place or places, if any, in addition to or in place of the
office or agency of the Company in The City of New York, State of New York
or the principal corporate trust office of the Trustee or its successors
in trust under the Indenture, which, at the date hereof, is located at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets
Fiduciary Services, at which or methods by which (i) the principal of and
premium, if any, and interest, if any, on Securities of such series, or
any Tranche thereof, shall be payable, (ii) registration of transfer of
Securities of such series, or any Tranche thereof, may be effected, (iii)
exchanges of Securities of such series, or any Tranche thereof, may be
effected and (iv) notices and demands to or upon the Company in respect of
the Securities of such series, or any Tranche thereof, and this Indenture
may be served;
(7) the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon
which Securities of the series, or any Tranche thereof, may be redeemed,
in whole or in part, at the option of the Company and any restrictions on
such redemptions, including but not limited to a restriction on a partial
redemption by the Company of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities from any national
exchange;
(8) the obligation or obligations, if any, of the Company to redeem,
repay or purchase Securities of the series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory redemption provisions or
at the option of a Holder thereof, and the period or periods within which,
or the date or dates on which, the price or prices at which and the terms
and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of Section 1104 in the case of
mandatory redemption or redemption at the option of the Holder;
(9) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies, in
which payment of the principal of (and premium, if any) and interest, if
any, on the Securities, or any Tranche thereof, of the series shall be
payable, and the manner of determining the equivalent thereof in the
currency of the United States for any purpose, including for purposes of
the definition of "Outstanding" in Section 101;
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(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 hereof;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series, or any
Tranche thereof, shall be issuable;
(12) if the principal of (and premium, if any) or interest, if any,
on the Securities of the series, or any Tranche thereof, are to be
payable, at the election of the Company or a Holder thereof, in a coin or
currency other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of the series, or any Tranche
thereof, may be determined with reference to an index or other fact or
event ascertainable outside this Indenture, the manner in which such
amounts shall be determined, to the extent not established pursuant to
subsection (5) of this paragraph;
(14) if the principal of (and premium, if any) or interest on the
Securities of the series, or any Tranche thereof, are to be payable, or
are to be payable at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or
other property, or the formulary or other method or other means by which
such amount shall be determined, and the period or periods within which,
and the terms and conditions upon which, any such election may be made;
(15) any Events of Default, in addition to those specified in
Section 501, with respect to the Securities of such series, whether
Section 1007 is applicable to the Securities of such series and any
covenants of the Company for the benefit of the Holders of the Securities
of such series, or any Tranche thereof, in addition to those set forth in
Article Ten;
(16) if the Securities of the series, or any Tranche thereof, shall
be issued in whole or in part in the form of one or more Global
Securities, (i) whether beneficial owners of interests in any such Global
Security may exchange such interests for Securities of such series of like
tenor and of authorized form and denomination and the circumstances under
which any such changes may occur, if other than in the manner provided in
Section 311 hereof, (ii) the Depositary for such Global Security or
Securities and (iii) any and all other matters incidental to such
Securities;
(17) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any other
Person;
(18) if other than as set forth in Articles Four or Ten, provisions
for the satisfaction and discharge of this Indenture or Discharge of the
indebtedness or the defeasance of certain covenants, with respect to the
Securities of the series, or any Tranche thereof;
(19) if the Securities of the series, or any Tranche thereof, do not
bear interest or do not pay semi-annual interest, the applicable dates for
purposes of Section 701;
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(20) if the Securities of the series, or any Tranche thereof, are
issuable as Indexed Securities, the manner in which the amount of payments
of principal, premium, if any, and interest, if any, on that series will
be determined;
(21) to the extent not established pursuant to subsection (16) of
this paragraph, any limitations on the rights of the Holders of the
Securities of such series, or any Tranche thereof, to transfer or exchange
such Securities or to obtain the registration of transfer thereof; and if
a service charge will be made for the registration of transfer or exchange
of Securities of such series, or any Tranche thereof, the amount or terms
thereof;
(22) any exceptions to Section 113, or variation in the definition
of Business Day, with respect to the Securities of such series, or any
Tranche thereof;
(23) any collateral security, assurance or guarantee for the
Securities of such series;
(24) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(25) any other terms of the series, or any Tranche thereof (which
terms shall not be inconsistent with the provisions of this Indenture),
including, without limitation, any terms required for or appropriate to
(i) establishing one or more series of medium-term notes to be issued in a
Periodic Offering or (ii) providing for the remarketing of the Securities
of such series.
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and set forth in the Officers' Certificate referred to above
or in any such indenture supplemental hereto.
If any of the terms of the series, including the form of Security of
such series, are established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary or other authorized officer of the Company, and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 hereof for the authentication and delivery of such
series of Securities.
With respect to Securities of a series offered in a Periodic
Offering, such Board Resolution and Officers' Certificate or supplemental
indenture may provide general terms or parameters for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with other procedures
specified in a Company Order as contemplated by the third paragraph of Section
303.
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Unless otherwise provided, a series may be reopened, without the
consent of the Holders, for increases in the aggregate principal amount of such
series of Securities and issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons, except as otherwise expressly provided in a supplemental
indenture hereto, in such denominations as shall be specified as contemplated by
Section 301 hereof. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, any Vice Chairman, its President, any Executive or Senior Vice
President, or one of its Vice Presidents under its corporate seal (if any),
reproduced thereon (which may be facsimile) attested by its Secretary or one of
its Assistant Secretaries. The Securities of any series shall be executed by
such additional officer, if any, as shall be specified pursuant to Section 301
hereof. The signature of any of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any therein have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such office at the date of authentication of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for the specific terms of the
Securities being so offered, together with (i) a Company Order for the
authentication and delivery of such Securities, (ii) an Officers' Certificate
stating that (x) the Company is not, and upon the authentication by the Trustee
of the series of Securities, will not be in default under any of the terms or
covenants contained in the Indenture, and (y) all conditions that must be met by
the Company to issue Securities under the Indenture have been met, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301 hereof, in authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601 hereof) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201 hereof, that such
form has been established in conformity with the provisions of this
Indenture;
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(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301 hereof, that such
terms have been established in conformity with the provisions of this
Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other
similar laws relating to or affecting the rights of creditors generally
and except as the enforceability thereof is subject to the application of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (i) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (ii) concepts of materiality, reasonableness,
good faith and fair dealing;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of Securities of such
series, and in such case the opinions described in Clauses (b) and (c) above may
state, respectively, that:
(i) if the terms of such Securities are to be established pursuant
to a Company Order or pursuant to such procedures as may be specified from
time to time by a Company Order, all as contemplated by a Board Resolution
or action taken pursuant thereto, such terms will have been duly
authorized by the Company and established in conformity with the
provisions of this Indenture; and
(ii) that such Securities, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee in accordance
with this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture, and issued and delivered by the Company
and paid for, all in accordance with any agreement of the Company relating
to the offering, issuance and sale of such Securities, will be duly issued
under this Indenture and will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other similar laws
of general applicability relating to or affecting generally the
enforcement of creditors' rights, to general equitable principles and to
such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities and any coupons.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
protections or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 hereof and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution,
the Officers' Certificate, or an indenture supplemental hereto otherwise
required pursuant to Sections 201 and 301 hereof or the Company Order, the
Officers' Certificate and the Opinion of Counsel otherwise required pursuant to
such preceding paragraph at or prior to the time of authentication of each
Security
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of such series if such documents are delivered at or prior to the time
of authentication upon original issuance of the first Security of such series to
be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 hereof
together with a written statement (which need not comply with Section 102 hereof
and need not be accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officer or officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series and of like tenor of
authorized denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office or in any other
office or agency of the Company in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
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Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, any Security or Securities of any
series, other than a Global Security, may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration
of transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 304, 906 or 1107 hereof not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 hereof and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of this Section 305 are, with respect to any Global
Security, subject to Section 311 hereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by
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a bona fide purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 306
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the
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notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at his
address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of a Security as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
307 hereof) interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary. All such payments so made to any such Holder, or upon
such Holder's order, shall be valid, and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any responsibility
or liability for any aspect of the records relating to or payments made by a
Depositary on account of beneficial ownership interests of a Global Security or
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. Notwithstanding the foregoing, nothing herein shall impair,
as between a Depositary and such holders of beneficial interests, the operation
of customary practices governing the exercise of the rights of the Depositary as
holder of any Security.
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SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 309, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be disposed of as directed by
a Company Order, provided that the Trustee shall not be required to destroy
canceled Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 hereof
for Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Global Securities.
If the Company establishes pursuant to Section 301 hereof that the
Securities of a particular series are to be issued in the form of a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 303 hereof, authenticate and deliver, a Global Security or
Securities which (i) shall represent, and shall be denominated in an aggregate
amount equal to the aggregate principal amount of, all or a part of the
Outstanding Securities of such series, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable for
Securities registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture,
and no transfer of this Security (other than a transfer of this Security
as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Global Security is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any definitive Security
is issued in the name of [Cede & Co.] or in such other name as is
requested by an authorized representative of the Depositary (and any
payment is made to [Cede & Co.] or to such other entity as is requested by
an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, [Cede & Co.], has an interest
herein."
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Notwithstanding the provisions of Section 305 hereof, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 305 hereof, only to the Depositary, another nominee
of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
If (i) at any time the Depositary for a series of Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be or (ii) there shall have
occurred and be continuing after any applicable grace periods an Event of
Default with respect to the Securities for a series, then in each such case,
this Section 311 shall no longer be applicable to the Securities of such series
and the Company will execute, and subject to Section 305 hereof, the Trustee
will authenticate and deliver Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Securities of such series in
exchange for such Global Securities. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by
Global Securities and that the provisions of this Section 311 shall no longer
apply to the Securities of such series. In such event the Company will execute
and subject to Section 305 hereof, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Securities of such series in exchange for such
Global Securities. Upon the exchange of the Global Securities for such
Securities in definitive registered form without coupons, in authorized
denominations, the Global Securities shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Securities pursuant to this Section 311, shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to the instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver Securities to the Depositary for delivery to
the persons in whose names such Securities are so registered.
SECTION 312. Periodic Offering of Securities.
Notwithstanding any contrary provision herein, if all Securities of
a series are not to be originally issued at one time, it shall not be necessary
for the Company to deliver to the Trustee an Officers' Certificate, Board
Resolution, supplemental indenture, Opinion of Counsel or Company Order
otherwise required pursuant to Sections 201, 301 and 303 at or prior to the time
of authentication of each Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first Security of such series to be issued; provided
that any subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company and its counsel that as of the date
of such request, the statements made in the Officers' Certificate and opinions
made in the Opinion of Counsel delivered pursuant to Section 102 and 303,
respectively, shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the
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Trustee or its agent on original issue from time to time upon the written order
of a person or persons designated in such Officers' Certificate, supplemental
indenture or Board Resolution (any such telephonic instructions to be confirmed
promptly in writing by such person or persons) and that such person or persons
are authorized to determine, consistent with such Officers' Certificate,
supplemental indenture or Board Resolution, such terms and conditions of said
Securities as are specified in such Officers' Certificate, supplemental
indenture or Board Resolution.
SECTION 313. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either (A) all Securities of that series theretofore
authenticated and delivered (other than (x) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 306 hereof and (y) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003 hereof) have been delivered to the
Trustee for cancellation; or
(B) all such Securities of that series not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year,
or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, or
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(iv) are deemed paid and discharged pursuant to Section 403
hereof, as applicable,
and the Company, in the case of (i), (ii), (iii) or (iv) of clause (B)
above, has deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount of (a) money in the currency or
units of currency in which such Securities are payable, or (b) in the case
of (ii) or (iii) of clause (B) above and (except as provided in an
indenture supplemental hereto) if no Securities of the affected series
Outstanding are subject to repurchase at the option of Holders and if such
Securities are payable in U.S. Dollars (I) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day before the
Stated Maturity or Redemption Date, as the case may be, money in an amount
which is, upon the basis of a report of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, or (II) a combination of
money or U.S. Government Obligations as provided in (I) above, in each
case, sufficient to pay and discharge the entire Indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 hereof, the
obligations of the Trustee to any Authenticating Agent under Section 614 hereof
and, if money or U.S. Government Obligations shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section 401 or if money
or U.S. Government Obligations shall have been deposited with or received by the
Trustee pursuant to Section 403 hereof, the obligations of the Trustee under
Section 402 hereof and the last paragraph of Section 1003 hereof shall survive.
SECTION 402. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section 1003
hereof, all money or U.S. Government Obligations deposited with the Trustee
pursuant to Sections 401, 403 or 1009 hereof and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the Trustee
pursuant to Sections 401, 403 or 1009 hereof, shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture,
to the payment, to the persons entitled thereto, of the principal (and premium,
if any) and interest, if any, for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Sections 401, 403 or 1009 hereof.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited
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pursuant to Sections 401, 403 or 1009 hereof or the interest and principal
received in respect of such obligations other than any payable by or on behalf
of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any U.S. Government Obligations or money held by it as
provided in Sections 401, 403 or 1009 hereof which, in the opinion of a
nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited for
the purpose for which such U.S. Government Obligations or money was deposited or
received. This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series.
The Company shall be deemed to have paid and Discharged the entire
Indebtedness on all the Outstanding Securities of any series on the 91st day
after the date of the deposit referred to in subparagraph (1) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Securities of
such series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall at Company Request execute proper instruments acknowledging
the same), except as to:
(a) the rights of Holders of Securities of such series to receive,
from the trust funds described in subparagraph (1) hereof, (i) payment of
the principal of (and premium, if any) and each installment of principal
of (and premium, if any) or interest, if any, on the Outstanding
Securities of such series on the Stated Maturity of such principal or
installment of principal or interest or to and including the Redemption
Date irrevocably designated by the Company pursuant to subparagraph (5)
hereof and (ii) the benefit of any mandatory sinking fund payments
applicable to the Securities of such series on the day of which such
payments are due and payable in accordance with the terms of this
Indenture and the Securities of such series;
(b) the Company's obligations with respect to such Securities of
such series under Sections 305, 306, 1002 and 1003 hereof and if the
Company shall have irrevocably designated a Redemption Date pursuant to
subparagraph (5) hereof, Sections 1101, 1104 and 1106 hereof as they apply
to such Redemption Date;
(c) the Company's obligations with respect to the Trustee under
Section 607 hereof; and
(d) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 402 hereof and, if
the Company shall have irrevocably designated a Redemption Date pursuant
to subparagraph (5) hereof, Article Eleven and the duty of the Trustee to
authenticate Securities of such series on registration of transfer or
exchange;
provided that, the following conditions shall have been satisfied:
(1) the Company has deposited or caused to be irrevocably deposited
(except as provided in Section 402(c) hereof and the last paragraph of
Section 1003 hereof) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of such series, (i) money, in the
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currency or units of currency in which such Securities are payable, in an
amount, or (ii) (except as provided in a supplemental indenture or Board
Resolution with respect to such series) if Securities of such series are
not subject to repurchase at the option of Holders and if such Securities
are payable in U.S. Dollars, (A) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one day before the due date
of any payment referred to in clause (x) or (y) of this subparagraph (1)
money in an amount or (B) a combination thereof, in each case sufficient,
in the report of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which the Trustee shall be
instructed to apply to pay and discharge, (x) the principal of (and
premium, if any) and each installment of principal (and premium, if any)
and interest, if any, on the Outstanding Securities of such series on the
Stated Maturity of such principal or installment of principal or interest
or to and including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (5) hereof and (y) any mandatory sinking
fund payments applicable to the Securities of such series on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of the Securities of such series;
(2) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that such provision would not cause any Outstanding
Securities of such series then listed on any national securities exchange
to be delisted as a result thereof;
(3) no Event of Default or event which with notice or lapse of time
would become an Event of Default (including by reason of such deposit)
with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
(4) the Company has delivered to the Trustee an unqualified opinion,
in form and substance reasonably acceptable to the Trustee, of independent
counsel of national standing selected by the Company and satisfactory to
the Trustee to the effect that (i) Holders of the Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of the deposit, defeasance and discharge, which opinion shall be based on
a change in law or a ruling by the U.S. Internal Revenue Service and (ii)
the defeasance trust is not, or is registered as, an investment company
under the Investment Company Act of 1940;
(5) if the Company has deposited or caused to be deposited money or
U.S. Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the Outstanding Securities of a
series to and including a Redemption Date on which all of the Outstanding
Securities of such series are to be redeemed, such Redemption Date shall
be irrevocably designated by a Board Resolution delivered to the Trustee
on or prior to the date of deposit of such money or U.S. Government
Obligations, and such Board Resolution shall be accompanied by an
irrevocable Company Request that the Trustee give notice of such
redemption in the name and at the expense of the Company not less than 30
nor more than 60 days prior to such Redemption Date in accordance with
Section 1104 hereof; and
(6) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of the Securities have been complied with.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body) unless it is either inapplicable to a particular series (to the extent
expressly provided in the form of Security for such series) or it is
specifically deleted or modified in the Board Resolution (or action pursuant
thereto), Officers' Certificate or supplemental indenture under which such
series of Securities is issued or has been deleted or modified in an indenture
supplemental hereto:
(a) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(c) default in the payment of any sinking fund installment, when and
as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty or obligation of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section 501 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of any
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) default occurs under any bond, note, debenture or other
instrument evidencing any indebtedness for money borrowed by the Company
(including a default with respect to any other series of debt securities
issued under the indenture), or under any mortgage, indenture or other
instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company
(or the payment of which is guaranteed by the Company), whether such
indebtedness or guarantee exists on the date of this Indenture or is
issued or entered into following the date of this Indenture, if:
(i) either
(A) such default results from the failure to pay any such
indebtedness when due; or
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(B) as a result of such default the maturity of such
indebtedness has been accelerated prior to its expressed maturity;
and
(ii) the principal amount of such indebtedness, together with the
principal amount of any other such indebtedness in default for
failure to pay any such indebtedness when due or the maturity of
which has been so accelerated, aggregates at least $40 million; or
(f) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency or other similar law or (B) a decree or order appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(g) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency or
other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer
or consent seeking relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the taking of corporate action by the Company
in furtherance of any such action; or
(h) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to the Board Resolution under which
such series of Securities is issued or in the form of Security for such
series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding described in paragraph (a), (b), (c), (d), (e) or (h) of
Section 501 hereof occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
If an Event of Default described in paragraph (f) or (g) of Section
501 hereof occurs and is continuing, then and in every such case, the principal
amount (or, if any Securities are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms thereof) of all
the Securities shall, without any notice to the Company or any other
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act on the part of the Trustee or any Holder of the Securities, become and be
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest, if any, on all Securities of that
series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon any overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of and accrued interest on
Securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513
hereof.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if (a) default is made in the payment of
any interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or (b) default is made in the payment
of the principal of (or premium, if any, on) any Security at the Maturity
thereof, then the Company will, upon written demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed
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therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If any Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and any other amounts due the
Trustee under Section 607 hereof.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order with respect to the Securities of the series in
respect of which such money was collected at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607 hereof;
SECOND: In case the principal and premium, if any, of the Securities
of such series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of interest, if
any, on the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee and to the
extent permitted by law) upon the overdue installments of interest at the
rate prescribed therefor in such Securities, such payments to be made
ratably to the Persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal or premium, if any, of the Securities
of such series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series for
principal and premium, if any, and interest, if any, with interest upon
the overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
law) upon overdue installments of interest at the rate prescribed therefor
in the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and any
premium and interest, without preference or priority of principal over
interest, or of interest over principal or premium, or of any installment
of interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such principal and any premium and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to a Responsible
Officer of the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 33% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307 hereof) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on the Redemption Date or the repayment
date, respectively) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
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thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306 hereof, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction,
(3) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to Holders not taking part in such action,
and
(4) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series with respect to which any
default under the Indenture shall
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have occurred and be continuing (voting as one class) may, on behalf of the
Holders of all Securities of all such series waive any past default under the
Indenture and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 514 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, respectively).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section 601;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any series, determined as provided in
Section 512 hereof, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
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(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 601. The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and it shall not be answerable for
other than its own negligent action, its own negligent failure to act or its own
willful misconduct.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any default of the character
specified in Section 501(d) hereof with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 602, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof:
(a) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
deems it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to expend or risk its
own funds or to exercise, at the request or direction of any of the Holders, any
of the rights or powers vested in it by this Indenture pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
upon reasonable request to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(i) the Trustee shall not be deemed to have notice of any default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such
a default is received by the Trustee at the Corporate Trust Office of the
Trustee from the Company or any Holder, and such notice references the
Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof. The Trustee
shall not be responsible for doing or performing any thing or act which the
Company shall have covenanted to do or perform, or for any compliance with any
covenant by the Company, nor shall the Trustee be bound to ascertain or inquire
as to the performance of any covenant, condition or agreement by the Company,
but it may require full information and advice in regard to any of the
foregoing.
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SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613 hereof, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as is
agreed upon in writing, or, if no such agreement exists, reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel, except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
(4) as security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such under this Indenture, except funds held in trust for the payment of
principal of, premium, if any, or interest, if any, on particular
Securities.
SECTION 608. Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall
be subject to the provisions of Section 310(b) of the Trust Indenture Act during
the period of time provided for therein. In determining whether the Trustee has
a conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded for
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purposes of the conflicting interest provisions of such Section 310(b) the
Securities of every other series issued under this Indenture. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under the Trust Indenture Act and which shall have a
combined capital and surplus of at least $50,000,000. If the Trustee does not
have an office in The City of New York, the Trustee may appoint an agent in The
City of New York reasonably acceptable to the Company to conduct any activities
which the Trustee may be required under this Indenture to conduct in The City of
New York. If the Trustee does not have an office in The City of New York or has
not appointed an agent in The City of New York, the Trustee shall be a
participant in The Depository Trust Company and FAST distribution systems. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of a Federal, State, or District of Columbia
supervising or examining authority, then for the purposes of this Section 609,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 609, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611 hereof.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company, specifying the day upon which the resignation is to take effect. If the
instrument of acceptance by a successor Trustee required by Section 611 hereof
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act pursuant to Section 608 hereof with respect
to any series of Securities after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609
hereof and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514 hereof,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611 hereof. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611 hereof, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611 hereof, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with
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all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section 611, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so
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authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Authenticating Agents.
From time to time the Trustee, in its sole discretion, may appoint
one or more Authenticating Agents with respect to one or more series of
Securities with power to act on the Trustee's behalf and subject to its
direction in the authentication and delivery of Securities of such series or in
connection with transfers and exchanges under Sections 304, 305, 306, 906, and
1107 hereof as fully to all intents and purposes as though the Authenticating
Agent had been expressly authorized by those Sections of this Indenture to
authenticate and deliver Securities of such series. For all purposes of this
Indenture, the authentication and delivery of Securities by an Authenticating
Agent pursuant to this Section 614 shall be deemed to be authentication and
delivery of such Securities "by the Trustee". Each such Authenticating Agent
must at all times be a corporation organized and doing business under the laws
of the United States, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
Federal, State or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 614 the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation or to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of the Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 614, without the
execution or filing of any paper or any further act on the part of the parties
hereto or the Authenticating Agent or such successor corporation.
An Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Trustee. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 614, the
Trustee may appoint a successor Authenticating Agent and shall mail notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, as the names and addresses of such
Holders appear on the Security Register. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor
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hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 614, and the
Trustee shall be entitled to be reimbursed for such payments pursuant to Section
607 hereof.
If an appointment with respect to one or more series of Securities
is made pursuant to this Section 614, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By:__________________________________
as Authenticating Agent
By:__________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
with respect to the Securities of each series
(a) semi-annually, not later than 15 days after each Regular Record
Date, or, in the case of any series of Securities on which semi-annual
interest is not payable, not more than 15 days after such semi-annual
dates as may be specified pursuant to Section 301(19) or by the Trustee, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date or semi-annual
date, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar for
any series of Securities, no such list shall be required to be furnished with
respect to any such series.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 hereof and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 701 hereof upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a) hereof, or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a) hereof, and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 702(a) hereof a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b) hereof, regardless of the source from which
such information was derived, and that the Trustee shall not be held
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accountable by reason of mailing any material pursuant to a request made under
Section 702(b) hereof.
SECTION 703. Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs not less than
60 days following the first date of issuance of Securities of any series under
this Indenture and within 60 days after May 15 in every year thereafter, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 with
respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 609 hereof and its
qualifications under Section 608 hereof;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other Indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an Indebtedness based upon a creditor
relationship arising in any manner described in Sections 613(b)(2), (3),
(4) or (6) hereof;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to
the lien of this Indenture, if any (and the consideration therefor, if
any) which it has not previously reported;
(7) any additional issue of Securities which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602 hereof.
(b) The Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief report with respect
to (1) the release, or
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release and substitution, of property subject to the lien of this Indenture (and
the consideration therefor, if any) unless the fair value of such property, is
less than 10% of the principal amount of Securities outstanding at the time of
such release, or release and substitution, and (2) the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to Subsection (a) of this Section 703 (or
if no such report has yet been so transmitted, since the date of execution of
this instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each national securities
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when any Securities are
listed on any national securities exchange or of any delisting thereof.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section 704 as may be required by rules and regulations prescribed
from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive
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notice of any information contained therein or determinable from information
contained therein, including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers'
Certificates and the statements delivered to it pursuant to Section 1008).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
Unless otherwise provided in an indenture supplemental hereto, the
Company shall not consolidate with or merge into any other Person or convey,
sell or otherwise transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, sale or
transfer the properties and assets of the Company substantially as an
entirety is a Person (other than a natural person) organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia, and shall expressly assume by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all the Outstanding
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default with respect to any series of Securities, and no event which,
after notice or lapse of time or both would become an Event of Default
with respect to any series of Securities, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee for each series of
Securities an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. Successor Person to be Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, sale or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
801 hereof, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, sale or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants, or the
surrender of such rights or powers, are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any right
or power herein conferred upon the Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form, or to permit or facilitate the issuance
of extendible or remarketed Securities;
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
as to the Securities of any series created by such supplemental indenture
and Securities of any series subsequently created to which such change or
elimination is made applicable by the subsequent supplemental indenture
creating such series;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 hereof;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b) hereof;
(9) to provide for any rights of the Holders of Securities of any
series to require the repurchase of Securities of such series by the
Company;
(10) to cure any ambiguity or defect, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to
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make any other provisions with respect to matters or questions arising
under this Indenture or the Securities or make any other changes herein or
therein, provided such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect;
(11) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect
at the date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(12) to modify, alter, amend or supplement this Indenture in any
other respect which is not materially adverse to Holders, which does not
involve a change described in clauses (1), (2) or (3) of Section 902
hereof.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
by such supplemental indenture (voting as one class), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 hereof, or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or repayment date, respectively),
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences, or the declaration of
certain defaults hereunder, provided for in this Indenture, or
(3) modify any of the provisions of this Section 902 or Section 513
hereof, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby,
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references
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to "the Trustee" and concomitant changes in this Section 902, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8) hereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary under this Section 902 that the particular
form of any proposed supplemental indenture be approved by an Act, provided that
the substance of such proposed supplemental indenture shall have been approved.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601 hereof) shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate, each stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company so
determines, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of the Securities of such series and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and, in such event, the Trustee shall act as the
Company's agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company at any time acts as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company has one or more Paying Agents for any series of
Securities, it will, no later than 11:00 a.m., New York time, on or prior to
each due date of the principal of (and premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum in immediately
available funds sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
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Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf and as agent of the Company where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company may at any time and from time to time authorize one
or more Persons to act as Paying Agent or as such agent in addition to or in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the written request and expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
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SECTION 1004. Corporate Existence.
Except as otherwise permitted under Article Eight, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and will use its best efforts to do or cause
to be done all things necessary to preserve and keep in full force and effect
its rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
SECTION 1005. Maintenance of Properties.
The Company will cause all tangible properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 1005 shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
SECTION 1006. Maintenance of Insurance.
The Company will maintain, and will cause each of its Subsidiaries
to maintain, with insurers the Company reasonably believes to be financially
sound and reputable, insurance deemed adequate by the Company with respect to
its properties and business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against by corporations
in the same or similar business. Such insurance may be subject to co-insurance,
deductibility or similar clauses which, in effect, result in self-insurance of
certain losses, provided that such self-insurance is in accord with the
practices of corporations in the same or similar business and adequate insurance
reserves are maintained in connection with such self-insurance.
SECTION 1007. Limitation on Secured Debt.
If, as contemplated by Section 301(15), this covenant is made
applicable to the Securities of a particular series, as long as any of the
Securities of that series shall remain Outstanding, the Company shall not
create, issue, incur or assume any Secured Debt without the consent of the
Holders of a majority in principal amount of the Outstanding Securities of
all series for which this covenant is specified to be applicable, considered
as one class (all such Securities being hereinafter called the "Benefitted
Securities").
The provisions of the first paragraph of this Section shall not
prohibit the creation, issuance, incurrence or assumption of any Secured Debt if
either:
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(A) the Company shall make effective provision whereby all
Benefitted Securities then Outstanding shall be secured equally and
ratably with such Secured Debt; or
(B) the Company shall deliver to the Trustee bonds, notes or other
evidences of indebtedness secured by the Lien which secures such
Secured Debt, such obligations and all payments thereon to be
held in trust by the Trustee for the benefit of the Benefitted
Securities (hereafter called "Secured Obligations") (I) in an
aggregate principal amount equal to the aggregate principal amount
of the Benefitted Securities then Outstanding, (II) maturing (or
being subject to mandatory redemption) on such dates and in such
principal amounts that, at each Stated Maturity of the Outstanding
Benefitted Securities, there shall mature (or be redeemed) Secured
Obligations equal in principal amount to the Benefitted Securities
then to mature and (III) containing, in addition to any mandatory
redemption provisions contained therein pursuant to clause (II)
above, mandatory redemption provisions correlative to the
provisions, if any, for the mandatory redemption (pursuant to a
sinking fund or otherwise) of the Benefitted Securities or for the
redemption thereof at the option of the Holder, as well as a
provision for mandatory redemption upon an acceleration of the
maturity of all Outstanding Benefitted Securities following an Event
of Default (such mandatory redemption to be rescinded upon the
rescission of such acceleration); it being expressly understood that
such Secured Obligations (X) may, but need not, bear interest, (Y)
may, but need not, contain provisions for the redemption thereof at
the option of the issuer, any such redemption to be made at a
redemption price or prices not less than the principal amount
thereof and (Z) shall be held by the Trustee for the benefit of the
Holders of all Benefitted Securities from time to time Outstanding
subject to such terms and conditions relating to surrender to the
Company, transfer restrictions, voting, application of payments of
principal and interest and other matters as shall be set forth in an
indenture supplemental hereto specifically providing for the
delivery to the Trustee of such Secured Obligations.
If the Company shall elect either of the alternatives described in
clauses (A) and (B) above, the Company shall deliver to the Trustee:
(i) an indenture supplemental hereto (I) together with appropriate
inter-creditor arrangements, if any, whereby all Benefitted
Securities then Outstanding shall be secured by the Lien referred to
in the preceding paragraph equally and ratably with all other
indebtedness secured by such Lien or (II) providing for the delivery
to the Trustee of Secured Obligations;
(ii) an Officers' Certificate (I) stating that, to the knowledge of
the signers, (1) no Event of Default has occurred and is continuing
and (2) no event has occurred and is continuing which entitles the
secured party under such Lien to accelerate the maturity of the
indebtedness outstanding thereunder and (II) stating the aggregate
principal amount of indebtedness issuable, and then proposed to be
issued, under and secured by such Lien;
(iii) an Opinion of Counsel (I) if the Benefitted Securities then
Outstanding are to be secured by such Lien, to the effect that all
such Securities then Outstanding are entitled to the benefit of such
Lien equally and ratably with all other indebtedness outstanding
under such Lien or (II) if Secured Obligations are to be delivered
to the Trustee, to the effect that such Secured Obligations have
been duly issued under such Lien and constitute valid obligations,
entitled to the
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benefit of such Lien equally and ratably with all other indebtedness
then outstanding under such Lien.
For all purposes of this section, except as otherwise expressly
provided or unless the context otherwise requires:
"Debt" means (A) indebtedness for borrowed money evidenced by a
bond, debenture, note or other written instrument or agreement by which the
Company is obligated to repay such borrowed money and (B) any guaranty by the
Company of any such indebtedness of another Person.
"Secured Debt" means Debt created, issued, incurred or assumed by
the Company which is secured by a Lien upon any shares of stock of any
Significant Subsidiary of the Company, as defined in Regulation S-X of the
rules and regulations under the Securities Act of 1933, as amended, whether
owned at the date of the initial authentication and delivery of the
Securities, or thereafter acquired.
SECTION 1008. Statement by Officers as to Default.
The Company will deliver to the Trustee on or before May 15 in each
year, a certificate of the Company's principal executive officer, principal
financial officer or principal accounting officer stating that in the course of
the performance by such signer of his duties as an officer of the Company he
would normally have knowledge of any default by the Company in the performance
and observance of any of the covenants or conditions contained in the Indenture,
stating whether or not he has knowledge of any such default and, if so,
specifying each such default of which such signer has knowledge and the nature
thereof.
SECTION 1009. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition
set forth in Section 801 or in Sections 1004 to 1007, inclusive, hereof with
respect to the Securities of any series, provided that the following conditions
shall have been satisfied:
(1) the Company has deposited or caused to be irrevocably deposited
(except as provided in Section 402(c) hereof and the last paragraph of
Section 1003 hereof) with the Trustee (specifying that each deposit is
pursuant to this Section 1009) as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (i) money in the currency or
units of currency in which such Securities are payable in an amount, or
(ii) (except as provided in a supplemental indenture with respect to such
series) if Securities of such series are not subject to repurchase at the
option of Holders and if such Securities are payable in U.S. Dollars, (A)
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide
not later than one day before the due date of any payment referred to in
clause (x) or (y) of this subparagraph (1) money in an amount, or (B) a
combination thereof, in each case sufficient, in the report of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which the Trustee shall be instructed to apply to
pay and discharge, (x) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest, if any, on
the Outstanding Securities of such series on the Stated
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Maturity of such principal or installment of principal or interest or to
and including the Redemption Date irrevocably designated by the Company
pursuant to subparagraph (4) of this Section 1009 and (y) any mandatory
sinking fund payments applicable to the Securities of such series on the
day on which payments are due and payable in accordance with the terms of
the Indenture and of the Securities of such series;
(2) no Event of Default or event which with notice or lapse of time
would become an Event of Default (including by reason of such deposit)
with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
(3) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that Holders of the Securities of such series
will not recognize income, gain, loss or expense for Federal income tax
purposes as a result of such deposit and defeasance of certain obligations
and will take into account all items of income, gain, loss or expense with
respect to the Securities at the same time and in the same manner as if
such deposit and defeasance had not taken place; (ii) that such provision
would not cause any outstanding Securities of such series then listed on
any national securities exchange to be delisted as a result thereof; and
(iii) that the defeasance trust is not, or is registered as, an investment
company under the Investment Company Act of 1940;
(4) if the Company has deposited or caused to be deposited money or
U.S. Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the Outstanding Securities of a
series to and including a Redemption Date on which all of the Outstanding
Securities of such series are to be redeemed, such Redemption Date shall
be irrevocably designated by a Board Resolution delivered to the Trustee
on or prior to the date of deposit of such money or U.S. Government
Obligations, and such Board Resolution shall be accompanied by an
irrevocable Company Request that the Trustee give notice of such
redemption in the name and at the expense of the Company not less than 30
nor more than 60 days prior to such Redemption Date in accordance with
Section 1104 hereof; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of the Securities have been complied with.
Upon the Company's exercise of its option to have this Section
applied to the Securities of any series, (1) the Company shall be released from
its obligations under Sections 801 and Sections 1004 through 1007, inclusive,
and (2) the occurrence of any event specified in Section 501(d) (with respect to
any of Section 801 and Sections 1004 through 1007, inclusive) shall be deemed
not to be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth above are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, Covenant Defeasance means that, with respect to such Securities, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified Section (to the
extent so specified in the case of Section 501(d)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Notwithstanding anything herein to the contrary, no Covenant
Defeasance shall release any successor Person referred to in Article Eight from
its obligations to assume the
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obligations of the Company under Section 607 as a condition to the consummation
of any transaction contemplated by Section 801.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 801 or in Sections 1004 to
1007, inclusive, hereof, with respect to the Securities of any series if before
the time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect. Notwithstanding
anything herein to the contrary, no waiver pursuant to this Section shall
release any successor Person referred to in Article Eight from its obligations
to assume the obligations of the Company under Section 607 as a condition to the
consummation of any transaction contemplated by Section 801.
SECTION 1011. Further Assurances.
The Company shall, at its own cost and expense, execute and deliver
to the Trustee all such other documents, instruments and agreements and do all
such other acts and things as may be reasonably required, in the opinion of the
Trustee, to enable the Trustee to exercise and enforce its rights under this
Indenture and under the documents, instruments and agreements required under
this Indenture and to carry out the intent of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 hereof for Securities of any
series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities and evidenced by an Officers' Certificate. In
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to
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the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, or pursuant to an election by
the Company which is subject to a condition specified in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction or
condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If any Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities of such series, provided that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the previous sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the preceding two paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denominations) for such Security.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and delivered
to the Security Registrar at least 60 days prior to the Redemption Date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed and, if less than all
the Outstanding Securities of any series consisting of a single Security
are to be redeemed, the principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) CUSIP numbers, if any.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any redemption of Securities
at the election of the Company, unless, upon the giving of notice of such
redemption, defeasance shall have been effected with respect to such
Securities pursuant to Sections 401 and 403, such notice may state that
such redemption shall be conditional upon the receipt by the Trustee or
the Paying Agent(s) for such Securities, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and any
premium and interest on such Securities and that if such money shall not
have been so received such notice shall be of no force and effect and the
Company shall not be required to redeem such Securities. In the event that
such notice of redemption contains such a condition and such money is not
so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such
redemption was not required to be made, and the Trustee or Paying Agent(s)
for the Securities otherwise to have been redeemed shall promptly return
to the Holders thereof any such Securities which had been surrendered for
payment of such redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of redemption as aforesaid,
shall be given by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company. Subject to the preceding paragraph,
any such notice of redemption shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
On or prior to 11:00 A.M., New York time, on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as
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its own Paying Agent, segregate and hold in trust as
provided in Section 1003 hereof) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date (to the extent that such amounts are not already on deposit at such
time in accordance with the provisions of Sections 401, 403 or 1009 hereof).
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid (subject to the
second paragraph of Section 1104), the Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued and unpaid interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, together with accrued and unpaid interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security (including any Global Security) which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered; provided,
that if a Global Security is so surrendered, the new Global Security shall be in
a denomination equal to the unredeemed portion of the principal of the Global
Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 hereof for Securities of such series.
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The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202 hereof. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 309 hereof, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section
1202, or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Company through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited shall
be received or credited by the Trustee at the sinking fund Redemption Price
specified in such Securities.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying (a) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (b) whether or not the
Company intends to exercise its right, if any, to make an optional sinking fund
payment with respect to such series on the next ensuing sinking fund payment
date and, if so, the amount of such optional sinking fund payment, and (c) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 hereof and the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Such written statement shall be irrevocable and upon its receipt by the Trustee
the Company shall become unconditionally obligated to make all the cash payments
or payments therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company, on or before any such 60th
day, to deliver such written statement and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect therefor and (ii) that the Company
will make no optional sinking fund payment with respect to such series as
provided in this Section 1203.
Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 hereof and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104 hereof.
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Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1105, 1106 and 1107
hereof.
The Trustee shall not redeem or cause to be redeemed any Security of
a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
default in payment of interest with respect to Securities of that series or an
Event of Default with respect to the Securities of that series except that,
where the mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 513
hereof or the default or Event of Default cured on or before the 60th day
preceding the sinking fund payment date, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
1203 to the redemption of such Securities.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 1301. Counterparts.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ENERGY EAST CORPORATION
By ___________________
Name:
Title:
Attest:
- --------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By _______________
Name:
Title:
Attest:
- ----------------------
Name:
Title:
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STATE OF ________)
: ss.:
COUNTY OF _______)
On the ___ day of ______ , 2000, before me personally came ________,
to me known, who, being by me duly sworn, did depose and say that [he/she] is
the ________ of Energy East Corporation, one of the corporations described in
and which executed the foregoing instrument; that [he/she] knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that [he/she] signed [his/her] name thereto by like authority.
--------------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the _____ day of ______, 2000, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
[he/she] is a __________ of The Chase Manhattan Bank, a New York banking
corporation, one of the corporations described in and which executed the
foregoing instrument; that [he/she] knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that [he/she]
signed [his/her] name thereto by like authority.
--------------------------------
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EXHIBIT 5
[HUBER LAWRENCE & ABELL LETTERHEAD]
April 14, 2000
Energy East Corporation
One Canterbury Green
Stamford, CT 06904
Dear Sirs:
In connection with the proposed public offering and sale by Energy East
Corporation (the "Company") of not to exceed an aggregate of $500,000,000
principal amount of its debt securities (the "Debt Securities") in one or more
series, the Company is filing with the Securities and Exchange Commission a
Registration Statement under the Securities Act of 1933, as amended, on
Form S-3 (the "Registration Statement") with which this opinion is to be
included as an Exhibit.
The Debt Securities are to be issued under an Indenture to be entered into
between the Company and The Chase Manhattan Bank as may be amended and
supplemented by one or more Supplemental Indentures relating to the Debt
Securities (the "Supplemental Indentures"), said Indenture as so amended and
supplemented by the Supplemental Indentures being hereinafter called the
"Indenture."
As your counsel, we are generally familiar with the corporate proceedings of
the Company and we have participated in all proceedings taken by the Company in
connection with the proposed issuance and sale of the Debt Securities.
In our opinion, when the actions as hereinafter set forth shall have been
taken, the Debt Securities will have been duly authorized, and, when sold, will
be legally issued, fully paid and non-assessable and will be binding obligations
of the Company and entitled to the benefits of the Indenture, enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws and judicial decisions affecting the enforcement of creditors' rights and
remedies generally and general principals of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity), which do not, in
our opinion, make inadequate the remedies of the Indenture:
(a) The Securities and Exchange Commission shall have entered an appropriate
order declaring the Registration Statement effective;
(b) The Indenture shall have become qualified under the Trust Indenture Act
of 1939;
(c) The Board of Directors of the Company shall have taken appropriate
action authorizing the execution and delivery of the Indenture, and the
same shall have been duly executed and delivered;
(d) The Board of Directors of the Company shall have authorized the issuance
and sale of the Debt Securities and each series thereof shall have been
authorized by the Board of Directors of the Company or a duly authorized
officer of the Company; and
(e) The Debt Securities shall have been appropriately issued, authenticated
by the Trustee under the Indenture, and delivered to the purchaser or
purchasers thereof and the consideration therefor received by the
Company.
<PAGE>
We hereby consent to the making of the statements with reference to our firm
under the heading "Legal Matters" in the Registration Statement and to the
filing of this opinion as an Exhibit to the Registration Statement.
Very truly yours,
Huber Lawrence & Abell
<PAGE>
EXHIBIT 12
ENERGY EAST CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
CALENDAR YEAR
---------------------------------------------------------
1999 1998 1997 1996 1995
--------- --------- --------- --------- ---------
(THOUSANDS)
<S> <C> <C> <C> <C> <C>
Net Income (Loss)...................... $218,751 $194,205 $175,211 $168,711 $177,969
Add:
Federal income tax--current.......... 646,757 98,427 111,829 79,015 63,502
Federal income tax--deferred......... (441,721) 38,749 5,884 28,928 52,362
-------- -------- -------- -------- --------
Pre-tax income (loss).............. 423,787 331,381 292,924 276,654 293,833
Fixed charges.......................... 134,754 136,108 136,121 137,243 155,424
-------- -------- -------- -------- --------
Earnings, as defined................... $558,541 $467,489 $429,045 $413,897 $449,257
======== ======== ======== ======== ========
Fixed Charges:
Interest on long-term debt........... $93,678 $98,040 $104,122 $108,431 $115,687
Other interest....................... 30,453 21,421 13,192 9,752 8,744
Amortization of premium and expense
on debt............................ 6,374 6,507 6,502 6,507 6,488
Interest portion of rental charges... 1,543 1,557 2,963 3,023 5,784
Earnings required to cover preferred
stock dividends of subsidiary...... 2,706 8,583 9,342 9,530 18,721
-------- -------- -------- -------- --------
Total fixed charges, as defined........ $134,754 $136,108 $136,121 $137,243 $155,424
======== ======== ======== ======== ========
Ratio of Earnings to Fixed Charges..... 4.14 3.43 3.15 3.02 2.89
======== ======== ======== ======== ========
</TABLE>
<PAGE>
EXHIBIT 23-2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 28, 2000, except for Note 15,
which is as of February 8, 2000, relating to the consolidated financial
statements and financial statement schedule which appears in Energy East
Corporation's Annual Report on Form 10-K for the year ended December 31, 1999.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
New York, New York
April 14, 2000
<PAGE>
EXHIBIT 23-3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 27, 2000, relating to the
consolidated financial statements and financial statement schedule, which
appears in CMP Group Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1999. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
New York, New York
April 14, 2000
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ WESLEY W. VON SCHACK
---------------------------------------------
Wesley W. von Schack
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ RICHARD AURELIO
---------------------------------------------
Richard Aurelio
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ JAMES A. CARRIGG
---------------------------------------------
James A. Carrigg
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ ALISON P. CASARETT
---------------------------------------------
Alison P. Casarett
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ JOSEPH J. CASTIGLIA
---------------------------------------------
Joseph J. Castiglia
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ LOIS B. DEFLEUR
---------------------------------------------
Lois B. DeFleur
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ PAUL L. GIOIA
---------------------------------------------
Paul L. Gioia
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ JOHN M. KEELER
---------------------------------------------
John M. Keeler
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ BEN E. LYNCH
---------------------------------------------
Ben E. Lynch
</TABLE>
<PAGE>
EXHIBIT 24-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of Energy East Corporation, a New York corporation, hereby constitutes and
appoints W.W. von Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum,
Esq. and F. Lee, Esq., and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file a Registration
Statement with the Securities and Exchange Commission, Washington, D.C. under
the provisions of the Securities Act of 1933, as amended, in connection with the
registration of up to $500 million of debt securities of the Corporation, any
and all amendments to such Registration Statement and any and all other
documents requisite to be filed with respect thereto, with all exhibits and
other documents in connection therewith, granting unto said attorneys, and each
of them or their substitutes or substitute, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, in order to effectuate the same as fully to all intents and
purposes as he or she might or could do.
IN WITNESS WHEREOF, the undersigned has set his or her hand this 14th day of
April, 2000.
<TABLE>
<S> <C> <C>
/S/ WALTER G. RICH
---------------------------------------------
Walter G. Rich
</TABLE>
<PAGE>
EXHIBIT 24-2
ENERGY EAST CORPORATION
CERTIFIED RESOLUTION
RESOLVED, that the Corporation hereby constitutes and appoints W.W. von
Schack, K.M. Jasinski, Esq., R.D. Kump, D.W. Farley, L. Blum, Esq. and F. Lee,
Esq., and each of them (with full power to each of them to act alone) its true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for it and on its behalf and in its name, place and stead, to
sign, execute and file a Registration Statement with the Securities and Exchange
Commission, Washington, D.C. under the provisions of the Securities Act of 1933,
as amended, in connection with the registration of up to $500 million of debt
securities of the Corporation, any and all amendments to such Registration
Statement and any and all other documents requisite to be filed with respect
thereto, with all exhibits and other documents in connection therewith, granting
unto said attorneys, and each of them or their substitutes or substitute, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, in order to effectuate the same
as fully to all intents and purposes as the Corporation might or could do.
*****
I, DANIEL W. FARLEY, Secretary of ENERGY EAST CORPORATION, a New York
corporation, do hereby certify that the foregoing is a true and correct copy of
a resolution duly adopted by the Board of Directors of said Corporation at a
meeting thereof duly called, convened and held on April 14, 2000 and that said
resolution is in full force and effect as of the date hereof.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal
of said Corporation this 14th day of April, 2000.
<TABLE>
<S> <C> <C>
/S/ DANIEL W. FARLEY
---------------------------------------------
Daniel W. Farley
</TABLE>
<PAGE>
EXHIBIT 25
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(B)(2) ____
------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 13-4994650
(State of incorporation (I.R.S. Employer
if not a national bank) Identification No.)
270 PARK AVENUE 10017
NEW YORK, NEW YORK (Zip Code)
(Address of principal executive offices)
</TABLE>
------------------------
WILLIAM H. McDAVID
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
------------------------------
ENERGY EAST CORPORATION
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 14-1798693
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE CANTERBURY GREEN 06904
STAMFORD, CONNECTICUT (Zip Code)
(Address of principal executive offices)
</TABLE>
------------------------
DEBT SECURITIES
(Title of the indenture securities)
------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System, 20th and C Street, NW, Washington, D.C., 20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045. Federal Deposit Insurance
Corporation, 550 Seventeenth Street NW, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 14th day of April, 2000.
THE CHASE MANHATTAN BANK
By: /s/ NATALIA RODRIGUEZ
-----------------------------------
Natalia Rodriguez
TRUST OFFICER
2
<PAGE>
EXHIBIT 7 TO FORM T-1
BANK CALL NOTICE
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
THE CHASE MANHATTAN BANK
OF 270 PARK AVENUE, NEW YORK, NEW YORK 10017
AND FOREIGN AND DOMESTIC SUBSIDIARIES,
A MEMBER OF THE FEDERAL RESERVE SYSTEM,
AT THE CLOSE OF BUSINESS DECEMBER 31, 1999,
IN ACCORDANCE WITH A CALL MADE BY THE FEDERAL
RESERVE BANK OF THIS DISTRICT PURSUANT TO THE
PROVISIONS OF THE FEDERAL RESERVE ACT.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN MILLIONS
-------------------
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........ $ 13,271
Interest-bearing balances................................. 30,165
Securities:
Held to maturity securities............................... 724
Available for sale securities............................. 54,770
Federal funds sold and securities purchased under
agreements to resell.................................... 26,694
Loans and lease financing receivables:
Loans and leases, net of unearned income.................. $132,814
Less: Allowance for loan and lease losses................. 2,254
Less: Allocated transfer risk reserve..................... 0
--------
Loans and leases, net of unearned income, allowance, and
reserve................................................. 130,560
Trading Assets.............................................. 53,619
Premises and fixed assets (including capitalized leases).... 3,359
Other real estate owned..................................... 29
Investments in unconsolidated subsidiaries and associated
companies................................................. 186
Customers' liability to this bank on acceptances
outstanding............................................... 608
Intangible assets........................................... 3,659
Other assets................................................ 14,554
--------
TOTAL ASSETS................................................ $332,198
========
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN MILLIONS
-------------------
<S> <C> <C>
LIABILITIES
Deposits
In domestic offices....................................... $102,421
Noninterest-bearing....................................... $ 41,580
Interest-bearing.......................................... 60,841
In foreign offices, Edge and Agreement subsidiaries and
IBF's................................................... 108,233
Noninterest-bearing......................................... $ 6,061
Interest-bearing.......................................... 102,172
Federal funds purchased and securities sold under agreements
to repurchase............................................. 47,425
Demand notes issued to the U.S. Treasury.................... 100
Trading liabilities......................................... 33,626
Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
With a remaining maturity of one year or less............. 3,964
With a remaining maturity of more than one year through
three years............................................. 14
With a remaining maturity of more than three years........ 99
Bank's liability on acceptances executed and outstanding.... 608
Subordinated notes and debentures........................... 5,430
Other liabilities........................................... 11,886
TOTAL LIABILITIES........................................... 313,806
EQUITY CAPITAL
Perpetual preferred stock and related surplus............... 0
Common stock................................................ 1,211
Surplus (exclude all surplus related to preferred stock).... 11,066
Undivided profits and capital reserves...................... 7,376
Net unrealized holding gains (losses) on available-for-sale
securities................................................ (1,277)
Accumulated net gains (losses) on cash flow hedges.......... 0
Cumulative foreign currency translation adjustments......... 16
TOTAL EQUITY CAPITAL........................................ 18,392
--------
TOTAL LIABILITIES AND EQUITY CAPITAL........................ $332,198
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do
hereby declare that this Report of Condition has been prepared in conformance
with the instructions issued by the appropriate Federal regulatory authority and
is true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
HELENE L. KAPLAN ) Directors
HENRY B. SCHACHT )
4
