<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
ENERGEN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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ALABAMA 63-0757759
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
2101 SIXTH AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
(205) 326-2700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
J. DAVID WOODRUFF, JR.
ENERGEN CORPORATION
2101 SIXTH AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
(205) 326-2700
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF
AGENT FOR SERVICE)
----------------
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
JOHN K. MOLEN DAVID P. FALCK
BRADLEY, ARANT, ROSE & WHITE WINTHROP, STIMSON, PUTNAM & ROBERTS
2001 PARK PLACE, SUITE 1400 ONE BATTERY PARK PLAZA
BIRMINGHAM, ALABAMA 35203 NEW YORK, NEW YORK 10004-1490
(205) 521-8238 (212) 858-1438
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective as the Registrant
may determine.
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, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE(1) REGISTRATION FEE(2)
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<S> <C> <C>
Debt Securities; Common Stock........... $250,000,000 $86,207
</TABLE>
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(1) Estimated solely for purposes of computing the registration fee.
(2) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended, and reflects the offering
price rather than the principal amount of any Debt Securities issued at a
discount.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1996
PROSPECTUS
$250,000,000
ENERGEN CORPORATION
DEBT SECURITIES
COMMON STOCK
Energen Corporation (the "Corporation") may offer from time to time up to an
aggregate amount of $250,000,000 (or the equivalent thereof if any of the
securities offered hereby are denominated in a currency, currency unit or
composite currency other than the U.S. dollar) of (i) its notes, debentures or
other evidences of unsecured indebtedness (the "Debt Securities") in one or
more currencies on terms to be determined at the time of sale and (ii) shares
of its common stock, par value $.01 per share (the "Common Stock"), on terms to
be determined at the time of sale. The Common Stock is referred to herein as
the "Equity Securities," and the Debt Securities and the Equity Securities are
collectively referred to herein as the "Offered Securities." The Offered
Securities may be sold for U.S. Dollars, foreign currencies or foreign currency
units, and the principal of or any interest on the Debt Securities may be
payable in U.S. Dollars, foreign currencies or foreign currency units. The Debt
Securities will rank equally with all other outstanding unsecured senior
indebtedness of the Corporation. The Debt Securities may be issued in one or
more series with the same or various maturities, at par or with an original
issue discount. The Debt Securities of any series may be in registered or
bearer form and may be represented by a single global security registered in
the name of a securities depositary.
When Debt Securities are offered, a supplement to this Prospectus (the
"Prospectus Supplement") will set forth the specific terms of such Debt
Securities, including, where applicable, the specific designation, aggregate
principal amount, authorized denominations, currency or currency unit of
denomination and payment, maturity, interest rate (which may be fixed or
variable) and time of payment of interest, if any, any terms for redemption
(which either may be at the option of the Corporation or the holder), any terms
for sinking fund payments, and information about any listing on a securities
exchange of such Debt Securities. When Equity Securities are offered, a
Prospectus Supplement will set forth the aggregate number of shares offered.
Any Prospectus Supplement will also set forth the initial public offering
price, the net proceeds to the Corporation and other specific terms of the
Offered Securities.
The Offered Securities may be sold to or through underwriters, dealers or
agents, or directly to purchasers. If any agents of the Corporation or any
underwriters are involved in the sale of the Offered Securities, their names,
and any applicable fee, commission or discount arrangements with them will be
set forth in any applicable Prospectus Supplement. See "Plan of Distribution."
No Offered Securities may be sold without delivery of a Prospectus Supplement
describing such series or issue of Offered Securities and the method and the
terms thereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1996.
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy and information
statements and other information filed by the Corporation can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices at 7 World Trade Center, Suite 1300, New York, New York 10048 and 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material also can be obtained at prescribed rates from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission also maintains a web site
(http://www.sec.gov) that contains reports, proxy and information statements
and other information regarding reporting companies, including the
Corporation. The shares of Common Stock of the Corporation are listed on the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
Reports, proxy and information statements and other information concerning the
Corporation can be inspected at the offices of that exchange.
The Corporation has filed a Registration Statement on Form S-3 (herein,
together with all exhibits and amendments thereto, called the "Registration
Statement") with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Offered Securities. This
Prospectus does not contain all of the information included in the
Registration Statement and the exhibits and schedules thereto. For further
information with respect to the Corporation and the Offered Securities,
reference is hereby made to the Registration Statement and the exhibits and
schedules thereto. The registration statement may be inspected without charge
at the offices of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, and copies thereof may be obtained from the Public Reference Section of
the Commission at such address at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission are
incorporated by reference in the Prospectus:
(a) The Corporation's Annual Report on Form 10-K for the year ended
September 30, 1995 filed pursuant to Section 13(a) of the Exchange Act;
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1995, March 31, 1996, and June 30, 1996 filed pursuant
to Section 13(a) of the Exchange Act;
(c) The Corporation's Current Report on Form 8-K dated August 23, 1996
filed pursuant to Section 13(a) of the Exchange Act;
(d) The description of the Corporation's preferred stock purchase rights
contained in, and the Rights Agreement filed as an exhibit to, the
Corporation's Registration Statement on Form 8-A, as amended, File No. 1-
7810, dated August 8, 1988.
All documents filed by the Corporation pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the securities offered hereby
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded, for purposes of this Prospectus, to
the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or replaces such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The information relating to the Company contained in this Prospectus
summarizes, is based upon, or refers to, information and financial statements
contained in one or more of the documents incorporated by reference in
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<PAGE>
this Prospectus; accordingly, such information contained herein is qualified
in its entirety by reference to such incorporated documents and should be read
in conjunction therewith.
The Corporation will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any and all of the
information that has been incorporated by reference in the Prospectus (not
including exhibits to the information that is incorporated by reference in the
Prospectus unless such exhibits are specifically incorporated by reference
into the information that the Prospectus incorporates). Requests for such
copies should be addressed to Energen Corporation, Investor Relations
Department, 2101 Sixth Avenue North, Birmingham, Alabama 35203 (telephone
number (800) 654-3206 or (205) 326-2634).
ENERGEN CORPORATION
The Corporation is a diversified energy holding company engaged primarily in
natural gas distribution and the exploration and production of natural gas and
oil. The Corporation's principal utility subsidiary, Alabama Gas Corporation
("Alagasco"), is the largest natural gas distribution utility in the State of
Alabama. Alagasco purchases natural gas through interstate and intrastate
suppliers and distributes the purchased gas through its distribution
facilities for sale to residential, commercial, industrial and other end-users
of natural gas. Alagasco also provides distribution services for selected
customers. The Corporation's oil and gas exploration, production and
development activities are conducted by its subsidiary, Taurus Exploration,
Inc. ("Taurus"), and involve the exploration for and the production of natural
gas and oil from both conventional and nonconventional reservoirs. Taurus also
seeks to increase its reserves of natural gas and oil through the acquisition
of such properties.
The Corporation's executive offices are located at 2101 Sixth Avenue North,
Birmingham, Alabama 35203 and its telephone number is (205) 326-2700.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for
each of the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED SEPTEMBER 30, JUNE 30,
------------------------ -----------
1995 1994 1993 1992 1991 1996
---- ---- ---- ---- ---- -----------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.... 2.95 3.68 3.01 2.52 2.28 4.47
</TABLE>
For purposes of computing the consolidated ratio, earnings represent net
income applicable to Common Stock, plus applicable income taxes and fixed
charges. Fixed charges represent interest expense, capitalized interest and
amortization of debt expense.
3
<PAGE>
USE OF PROCEEDS
Except as may otherwise be described or referred to in a Prospectus
Supplement, the Company intends to use the net proceeds from the sale of the
Offered Securities for general corporate purposes, including the Corporation's
working capital needs, the funding of investments in, or extensions of credit
to, its subsidiaries, the possible acquisition of other corporations or their
assets or liabilities, including the acquisition of natural gas and oil
properties, the reduction of short-term or other outstanding indebtedness and
the funding of Alagasco's share of supplier refunds due customers in
accordance with the settlement of certain rate cases between Southern Natural
Gas Company and FERC. Pending such use, the Corporation may temporarily invest
the net proceeds in investment grade securities. The Corporation may, from
time to time, engage in additional capital financings of a character and in
amounts to be determined by the Corporation in light of its need at such time
or times and in light of prevailing market conditions.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
applicable Prospectus Supplement may relate. The particular terms of the Debt
Securities offered by any applicable Prospectus Supplement (the "Offered Debt
Securities") and the extent, if any, to which such general provisions may
apply to the Debt Securities so offered will be described in the Prospectus
Supplement relating to such Offered Debt Securities.
The Debt Securities will be issued under an Indenture (the "Indenture")
between the Corporation and The Bank of New York (the "Trustee"). A copy of
the Indenture is filed as an exhibit to this Registration Statement. The
following summaries of the Debt Securities and the Indenture do not purport to
be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Indenture, including the applicable
definitions therein of certain terms used in this Prospectus. All capitalized
terms not defined in this Prospectus shall have the definitions ascribed to
them in the Indenture. Copies of the Indenture are available for inspection
during normal business hours at the principal office of the Corporation or at
the corporate trust office of the Trustee.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Corporation
and will rank pari passu with all outstanding unsecured senior indebtedness of
the Corporation. The Indenture does not limit the aggregate principal amount
of Debt Securities that may be issued thereunder and provides that Debt
Securities may be issued thereunder from time to time in one or more series.
All securities issued under the Indenture will rank equally and ratably with
all other securities to be issued under such Indenture.
The Debt Securities will be obligations exclusively of the Corporation.
Since substantially all of the operations of the Corporation are conducted
through its subsidiaries, principally Alagasco and Taurus, the Corporation's
cash flow and consequently its ability to service debt is dependent upon the
cash flow of its subsidiaries and the payment of funds by those subsidiaries
in the form of dividends.
The Prospectus Supplement and any related Pricing Supplement will describe
certain terms of the Offered Debt Securities, including: (1) the title of the
Offered Debt Securities; (2) any limit on the aggregate principal amount of
the Offered Debt Securities; (3) the date or dates on which the principal of
the Offered Debt Securities is payable; (4) the rate or rates per annum (which
may be fixed or variable) at which the Offered Debt Securities will bear
interest, if any, or any method by which such rate or rates shall be
determined, and the date or dates
4
<PAGE>
from which such interest will accrue; (5) the date or dates on which interest,
if any, on the Offered Debt Securities will be payable and the Regular Record
Dates for any such Interest Payment Dates; (6) each office or agency where the
principal of, and premium, if any, and any interest on the Offered Debt
Securities will be payable and may be surrendered for registration of transfer
or exchange; (7) the period or periods within which, the price or prices at
which, and the terms and conditions upon which the Offered Debt Securities may
be redeemed, in whole or in part, at the option of the Corporation; (8) the
obligation, if any, of the Corporation to redeem or purchase the Offered Debt
Securities pursuant to any sinking fund or similar provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which the Offered Debt Securities
will be redeemed or purchased, in whole or in part, pursuant to any such
obligation; (9) whether the Offered Debt Securities are to be issued in whole
or in part in the form of one or more global notes, and, if so, the identity of
the depositary for such global notes and the terms and conditions, if any, on
which interests in such global notes may be exchanged for the individual
securities represented thereby; (10) whether the Offered Debt Securities are to
be issued with original issue discount within the meaning of section 1273(a) of
the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder and the amount of such discount; (11) the obligations or instruments
which shall be considered to be Eligible Obligations in respect of Offered Debt
Securities denominated in any currency other than United States Dollars or in a
composite currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of Offered Debt
Securities after the satisfaction and discharge thereof; (12) any provisions
for payment of additional amounts for taxes, and any provisions for redemption
in the event the Corporation must comply with withholding tax or other tax
reporting requirements in respect of an Offered Debt Security other than a
Floating Rate Security ("Affected Security") or must pay such additional
amounts in respect of any Offered Debt Security; (13) any index used to
determine the amount of payment of principal of, and premium, if any, and any
interest on the Offered Debt Securities; (14) the applicable Overdue Rate, if
any; (15) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to the Offered Debt Securities;
(16) if the principal of or premium, if any, or interest, if any, on the
Offered Debt Securities are to be payable, at the election of the Corporation
or a Holder thereof, in a coin or currency other than that in which the Debt
Securities are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made; (17) the
currency or currencies, including composite currencies, in which payment of the
principal of and premium, if any, and interest, if any, on the Offered Debt
Securities shall be payable (if other than the currency of the United States);
(18) if the principal of or premium, if any, or interest on the Offered Debt
Securities are to be payable, or are to be payable at the election of the
Corporation or a Holder thereof, in securities or other property, the type and
amount of such securities or other property, or the method 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; (19) the terms, if any,
pursuant to which the Offered Debt Securities may be converted into or
exchanged for shares of capital stock or other securities of the Corporation;
(20) the obligations or instruments, if any, which shall be considered to be
Eligible Obligations (as defined herein) in respect of the Offered Debt
Securities denominated in any currency other than United States Dollars or in a
composite currency, and any additional or alternative provisions for the
reinstatement of the Corporation's indebtedness in respect of such Debt
Securities after the satisfaction and discharge thereof; and (21) any other
terms and provisions of the Offered Debt Securities which are not inconsistent
with the Indenture.
Unless otherwise provided in the Prospectus Supplement or a Pricing
Supplement, the Debt Securities will be issued only in fully registered form,
without coupons, in denominations of $1,000 or any integral multiple thereof.
Debt Securities may be issued as Discount Securities to be sold at a
substantial discount below their principal amount. Discount Securities mean any
Debt Securities issued with "original issue discount" within the meaning of
Section 1273(a) of the Code and the regulations thereunder. Special United
States income tax and other considerations applicable to Discount Securities
will be described in any applicable Prospectus Supplement relating thereto.
Discount Securities may provide for the declaration of acceleration of the
Maturity of an amount less than the principal amount thereof upon the
occurrence of an Event of Default and the continuation thereof.
5
<PAGE>
The Indenture provides that all Debt Securities of any one series need not be
issued at the same time and that the Corporation may, from time to time, issue
additional Debt Securities of a previously issued series. In addition, the
Indenture provides that the Corporation may issue Debt Securities with terms
different from those of any other series of Debt Securities and, within a
series of Debt Securities, terms (such as interest rate or manner in which
interest is calculated, original issue date, redemption provisions and maturity
date) may differ.
CERTAIN CONDITIONS FOR ISSUANCE OF ADDITIONAL INDEBTEDNESS
Under the indentures relating to its Series 1993 Notes due annually beginning
March 1, 1996 to March 1, 2008 (the "1993 Notes") and 8% Debentures due 2007
(the "8% Debentures"), the Corporation is not permitted to create or issue any
indebtedness, other than indebtedness maturing on demand or within one year,
which ranks prior to or on a parity with the 1993 Notes or the 8% Debentures in
right of payment unless immediately thereafter, and after giving effect thereto
and to the application of the proceeds thereof, Consolidated Net Utility Fixed
Assets (defined generally as the aggregate value of all the physical property
owned by the Corporation and its consolidated subsidiaries used or useful in
the business of furnishing or distributing gas service, less accumulated
depreciation) shall be at least equal to Consolidated Funded Indebtedness
(defined generally as all outstanding indebtedness of the Corporation and its
consolidated subsidiaries, other than indebtedness maturing on demand or within
one year).
Pursuant to Section 234 of the Constitution of Alabama of 1901, the bonded
indebtedness of Alabama corporations may not be increased without the consent
of shareholders. The Corporation currently has shareholder approval to issue
bonded indebtedness in an amount not exceeding, when taken together with then
outstanding bonded indebtedness, $75 million, and may not issue more than such
amount without the further consent of shareholders. Based upon such
requirement, the Corporation may presently issue an additional $40 million of
bonded indebtedness. The Corporation intends to request an increase in such
amount at the next annual meeting of shareholders in January 1997.
GLOBAL NOTES
If the Prospectus Supplement so provides, the Offered Debt Securities of a
series may be issued in whole or in part in the form of one or more Global
Notes that will be deposited with or on behalf of a depositary located in the
United States identified in any applicable Prospectus Supplement relating to
such series. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Note. The specific terms of the depositary arrangement with respect to
any Offered Debt Securities of a series will be described in any applicable
Prospectus Supplement relating to such series.
PAYMENT AND PAYING AGENTS
Except as may be provided in the applicable Prospectus Supplement, interest,
if any, on each Debt Security payable on each Interest Payment Date will be
paid to the person in whose name such Debt Security is registered as of the
close of business on the Regular Record Date relating to such Interest Payment
Date. However, if there has been a default in the payment of interest on any
Debt Security, such defaulted interest may be payable to the Holder of such
Debt Security as of the close of business on a date selected by the Trustee not
more than 15 days and not less than 10 days prior to the date proposed by the
Corporation for payment of such defaulted interest.
Unless otherwise indicated in any applicable Prospectus Supplement, principal
of, and premium and interest, if any, on the Debt Securities will be payable at
the office of the Trustee designated for such purpose or at any paying agent
maintained by the Corporation for such purpose, except that at the option of
the Corporation payment of any interest may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register, or (ii) by wire transfer to an account maintained by the
Person entitled thereto. The Corporation may appoint one or more Paying Agents
and may remove any Paying Agent, all in its discretion.
6
<PAGE>
The transfer of the Debt Securities may be registered, and the Debt
Securities may be exchanged for other Debt Securities of authorized
denominations and of like tenor and aggregate principal amount at the office of
the Trustee designated for such purpose or at any paying agency maintained by
the Corporation for such purpose. The Corporation may appoint one or more
additional security registrars or transfer agents and may remove any security
registrar or transfer agent, all in its discretion. The applicable Prospectus
Supplement will identify any additional security registrar or transfer agent
appointed.
No service charge will be made for any registration of transfer or exchange
of the Debt Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Corporation will not be required (a) to issue, register the
transfer of or exchange Debt Securities during the period of 15 days prior to
giving any notice of redemption or (b) to issue, register the transfer of or
exchange any Debt Security selected for redemption in whole or in part, except
the unredeemed portion of any Debt Security being redeemed in part.
All moneys paid by the Corporation to the Trustee or a Paying Agent for the
payment of principal of, and premium, if any, and any interest on any Debt
Securities which remain unclaimed at the end of two years after such principal,
premium or interest shall become due and payable will be repaid, subject to
applicable laws of escheat, to the Corporation, and the Holder of such Debt
Securities will thereafter look only to the Corporation for payment thereof.
REDEMPTION
Any terms for the optional or mandatory redemption of the Offered Debt
Securities will be set forth in the applicable Prospectus Supplement. In
accordance with the terms of the Indenture, Debt Securities will be redeemable
only upon notice, by mail, not less than 30 nor more than 60 days prior to the
date fixed for redemption and, if less than all of the Debt Securities of any
series are to be redeemed, the particular Debt Securities will be selected by
the Security Registrar by such method as the Trustee deems fair and
appropriate.
Any notice of optional redemption may state that such redemption shall be
conditional upon the receipt by the Trustee, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and premium and
interest, if any, on such Debt Securities and that if such money has not been
so received, such notice will be of no force or effect and the Corporation will
not be required to redeem such Debt Securities.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to the
Debt Securities of a series: (a) failure to pay any interest on any Debt
Security of that series within 30 days after the same becomes due and payable;
(b) failure to pay the principal of or premium, if any, on any Debt Security of
that series within three business days after the same becomes due and payable;
(c) failure to perform, or breach of, any other covenant or warranty of the
Corporation in the Indenture (other than a covenant or warranty included in the
Indenture solely for the benefit of one or more series of Debt Securities other
than such series), continued for 90 days after written notice by the Trustee to
the Corporation or by the Holders of at least 25% in principal amount of all
Outstanding Debt Securities of such series to the Corporation and the Trustee
as provided in the Indenture; (d) certain events involving bankruptcy,
insolvency, conservatorship, receivership or reorganization of the Corporation
or Alagasco or Taurus, whether voluntary or involuntary; (e) a default under
any other indebtedness of the Corporation or Alagasco or Taurus or instrument
under which there may be issued or by which there may be secured or evidenced
any indebtedness of the Corporation or Alagasco or Taurus, in each case
aggregating in excess of $10,000,000, which default constitutes a failure to
pay any portion of the principal of such indebtedness when due or results in
the acceleration of the maturity of such indebtedness, unless within a period
of 10 days after written notice of such default has been given to the
Corporation by the Trustee or to the Corporation and
7
<PAGE>
the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of any series, such indebtedness has been
discharged or such acceleration has been rescinded or annulled; and (f) any
other Event of Default provided for with respect to Debt Securities of that
series.
REMEDIES
Except as described in (e) above, no Event of Default with respect to the
Debt Securities of one series necessarily constitutes an Event of Default with
respect to the Debt Securities of any other series issued under the Indenture.
If any Event of Default with respect to the Debt Securities of any series
occurs and is continuing, either the Trustee or the Holders of at least 33% in
aggregate principal amount of all the Outstanding Debt Securities of that
series may declare the principal amount of all the Outstanding Debt Securities
of that series to be due and payable immediately; provided, however, that if an
Event of Default occurs and is continuing with respect to more than one series
of Debt Securities, the Trustee or the Holders of not less than 33% in
aggregate principal amount of the Outstanding Debt Securities of all such
series, considered as one class, may make such declaration of acceleration and
not the Holders of the Debt Securities of any one of such series.
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of each series may, on behalf of all Holders of the Debt
Securities of that series, waive any past default and its consequences under
the Indenture with respect to the Debt Securities of that series, except a
default in the payment of principal or premium or interest, if any, on any Debt
Security of that series, or in respect of a provision of the Indenture which
cannot be amended or modified without the consent of the Holder of each
Outstanding Debt Security of the series affected.
At any time after the declaration of acceleration with respect to Debt
Securities of any series has been made, but before a judgment or decree for the
payment of money due has been obtained, the Event or Events of Default giving
rise to such declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled if (a) the
Corporation has paid or deposited with the Trustee a sum sufficient to pay (1)
all overdue interest on all of such Debt Securities; (2) the principal of and
premium, if any, on any of such Debt Securities which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities; (3) to the extent that
payment of such interest is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Debt Securities; (4) all amounts due to
the Trustee under the Indenture; and (b) any other Events of Default with
respect to the Debt Securities of such series, other than the nonpayment of the
principal of such Debt Securities which has become due solely by such
declaration of acceleration, have been cured or waived as provided in the
Indenture.
MISCELLANEOUS RIGHTS AND OBLIGATIONS OF TRUSTEE
The Indenture provides that, subject to the duty of the Trustee during the
continuance of an Event of Default to act with the required standard of care,
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, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity. Subject to such provisions for the indemnification of the Trustee
and subject to certain other limitations, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of any series
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 of that
series; provided, however, that if an Event of Default occurs and is continuing
with respect to more than one series of Debt Securities, the Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
all such series, considered as one class, will have the right to make such
direction, and not the Holders of the Debt Securities of any one of such
series; and provided,
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further, that (a) such direction will not be in conflict with any rule of law
or with the Indenture and would not involve the Trustee in personal liability
in circumstances where reasonable indemnity would not, in the Trustee's sole
discretion, be adequate, (b) the Trustee shall not have determined that the
action so directed would be unjustly prejudicial to the Holders not taking part
in such direction and, (c) the Trustee may take any other action it deems
proper which is not inconsistent with such direction. The right of a Holder of
any Debt Security of such series to institute a proceeding with respect to the
Indenture is subject to certain conditions precedent, but each Holder has an
absolute right to receive payment of principal and premium and interest, if
any, when due and to institute suit for the enforcement of any such payment.
The Indenture provides that the Trustee, within 90 days after the occurrence of
any default thereunder with respect to the Debt Securities of a series, is
required to give the Holders of the Debt Securities of such series notice of
any default known to it, unless cured or waived; provided, however, that,
except in the case of a default in the payment of principal of or premium or
interest, if any, on any Debt Securities of such series, the Trustee may
withhold such notice if the Trustee determines that it is in the interest of
such Holders to do so; and, provided, further, that in the case of an Event of
Default of the character specified above in clause (c) under "Events of
Default," no such notice shall be given to such Holders until at least 75 days
after the occurrence thereof.
The Corporation is required to furnish to the Trustee annually a statement as
to the performance by the Corporation of certain of its obligations under the
Indenture and as to any default in such performance. The Corporation is also
required to notify the Trustee of any Event of Default within 10 days after
certain of its officers obtain actual knowledge thereof.
MODIFICATION, WAIVER AND AMENDMENT
Certain modifications and amendments of the Indenture may be made by the
Corporation and the Trustee without the consent of the Holders, including those
which: (a) evidence the assumption by any successor to the Corporation of the
Corporation's obligations under the Indenture or with respect to the Debt
Securities; (b) add to the covenants of or surrender any rights of the
Corporation under the Indenture; (c) add any Events of Default, in addition to
those specified in the Indenture, with respect to all or any series of
Outstanding Debt Securities; (d) change or eliminate any provision of the
Indenture or add any new provision to the Indenture; provided, however, that if
such change, elimination or addition will materially and adversely affect the
interests of Holders of Debt Securities of any series, such change, elimination
or addition will become effective with respect to such series only when there
is no Debt Security of such series remaining outstanding under the Indenture;
(e) provide collateral security for the Debt Securities; (f) establish the form
or terms of Debt Securities of any series; (g) evidence the appointment of a
successor Trustee with respect to the Debt Securities of one or more series and
to add to or change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trusts under
the Indenture by more than one trustee; (h) provide for the procedures required
to permit the utilization of a noncertificated system of registration for all
or any series of Debt Securities; (i) subject to certain conditions, change the
place where Debt Securities may be transferred, exchanged or paid; or (j) cure
any ambiguity or inconsistency or make any other provisions with respect to
matters and questions arising under the Indenture, provided such provisions
shall not adversely affect the interests of the Holders of Debt Securities of
any series in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), is amended after the date of
the Indenture to require changes to the Indenture or the incorporation therein
of additional provisions or permit changes to, or the elimination of,
provisions which at the date of the Indenture are required by the Trust
Indenture Act to be contained in the Indenture, the Corporation and the Trustee
may, without the consent of any Holders, enter into one or more supplemental
indentures to effect or reflect any such change, incorporation or elimination.
Modifications of and amendments to the Indenture may be made by the
Corporation and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected by such modification or amendment voting separately;
provided, however, that
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no such modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated Maturity
of the principal of, or any installment of principal or interest on, any Debt
Security; (b) reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon redemption thereof; (c) reduce the amount
of the principal of Discounted Securities that would be due and payable upon a
declaration of acceleration of the maturity; (d) change in the coin or currency
in which any Debt Security or any premium or the interest thereon is payable;
(e) impair the right to institute suit for the enforcement of any such payment;
(f) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults; (g) reduce the requirements
for quorum or voting; or (h) modify the provisions of the Indenture relating to
the modification of the Indenture, or the circumstances under which the Holders
may waive past defaults by and certain covenants of the Corporation except to
increase the percentages in principal amount referred to therein.
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of all series with respect to which a certain
covenant or restriction has been specified, may, on behalf of all Holders of
Debt Securities waive compliance by the Corporation with certain covenants of
the Indenture. The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may, on behalf of all Holders of Debt
Securities of that series (a) waive any past default under the Indenture with
respect to Debt Securities of that series, except a default (i) in the payment
of principal, premium, if any, or interest on any Debt Security, or (ii) in
respect of a covenant or provision that cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security affected thereby,
and (b) waive any Event of Default resulting in acceleration of such Debt
Securities in specified circumstances.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Corporation shall not consolidate with or
merge into any other corporation, association, company, joint stock company,
limited liability company or business trust (the "Successor Corporation") or
convey, transfer or lease its properties and assets substantially as an entity
to any Person unless (i) the Successor Corporation into which the Corporation
is merged or into which it is consolidated or the Person to which substantially
all of the Corporation's assets or properties are conveyed, transferred or
leased, is a Person organized under the laws of the United States, any state
thereof or the District of Columbia, and expressly assumes by means of a
supplemental indenture the due and punctual payment of the principal (and
premium, if any) and interest on all the Outstanding Debt Securities and the
performance of every covenant of the Corporation in the Indenture; (ii) upon
the occurrence of such a transaction, treating any indebtedness for borrowed
money which becomes an obligation of the Corporation as a result of such
transaction as having been incurred by the Corporation at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall occur or be continuing;
and (iii) the Corporation or the Successor Corporation or Person delivers to
the Trustee an Officers' Certificate and an Opinion of Counsel stating that the
consolidation, merger, conveyance, transfer or lease and the supplemental
indenture complies with the Indenture and all conditions precedent for such
transaction in the Indenture have been complied with.
CERTAIN COVENANTS
MAINTENANCE OF PROPERTY. The Corporation will cause (or, with respect to
property owned in common with others, make reasonable effort to cause) all its
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and will cause (or with
respect to property owned in common with others, make reasonable effort to
cause) to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as, in the judgment of the Corporation, may be
necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that the foregoing shall not prevent the
Corporation from discontinuing, or causing the discontinuance of, the
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operation and maintenance of any of its properties if such discontinuance, in
he judgment of the Corporation, (a) is desirable in the conduct of its
business and (b) will not adversely affect the interests of the Holders of
Debt Securities of any series in any material respect.
CORPORATE EXISTENCE. Subject to the rights of the Corporation described
under "Consolidation, Merger and Sale of Assets," the Corporation will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and rights (charter and statutory) and
franchises of the Corporation; provided, however, that the Corporation shall
not be required to preserve any such right or franchise if, in the judgment of
the Corporation (a) preservation thereof is no longer desirable in the conduct
of the business of the Corporation and (b) the failure to preserve any such
right or franchise will not adversely affect the interests of the Holders of
Debt Securities of any series in any material respect.
RESTRICTION ON LIENS. The Corporation will not create, assume, incur or
suffer to exist any mortgage, lien, pledge, charge or encumbrance of any kind
(other than "Excepted Encumbrances") upon property of the Corporation (other
than "Excepted Property") to secure indebtedness without effectively providing
that the Debt Securities shall be secured equally and ratably with the
indebtedness secured by such mortgage, lien, pledge, charge or encumbrance.
Subject to the next succeeding sentence, the foregoing restriction shall not
apply to (1) pledging of any assets of the Corporation as security for payment
of taxes or other similar charges in connection with a good faith contest by
the Corporation as to its liability for such payment; (2) pledging of any
assets of the Corporation to secure a stay or discharge in connection with a
legal proceeding in which the Corporation or a subsidiary is a party or for
the purpose of obtaining insurance coverage or other surety obligations
providing for securing such stay or discharge in the event such stay or
discharge should be required; (3) making deposits or providing security in
connection with tenders, redemptions, contracts or leases to which the
Corporation is a party or deposits for the purpose of terminating obligations
under an indenture; (4) pledging of assets in connection with the incurrence
of indebtedness in aggregate principal amount not exceeding 5% of the assets
of the Corporation as presented in the financial statements of the Corporation
contained in the most recently filed report on Form 10-K or 10-Q (or successor
forms thereto) filed with the Commission at the time of such pledge; (5)
liens, pledges, security interests or other encumbrances on property, stock or
indebtedness of any corporation existing at the time such corporation becomes
a subsidiary of or is merged into the Corporation, or existing at the time of
acquisition of such property or stock by the Corporation; (6) incurring liens,
licenses, pledges, security interests or other encumbrances to secure payment
of all or a part of the price of acquisition, construction or improvement of
property or stock acquired by the Corporation or to secure any indebtedness
incurred by the Corporation prior to, at the time of, or within 180 days after
the later of the acquisition or completion of construction where the secured
debt is incurred for the purpose of financing all or any part of the purchase
price of such property or construction or improvements thereon; (7) liens,
pledges, security interests or other encumbrances on property of the
Corporation created in favor of a government or any political subdivision or
instrumentality thereof, to secure partial progress, installment, advance or
other payments pursuant to any contract or statute or to secure any
indebtedness or other obligation incurred for the purpose of financing all or
any part of the purchase price or the cost of construction of property subject
to the encumbrance; or (8) any extension, renewal or replacement of any lien
or encumbrance referred to above, provided that the principal amount of the
indebtedness secured thereby is not increased and the lien or security
interest securing the indebtedness is not extended to cover additional
property. Notwithstanding the foregoing, in no event shall the Corporation
create, assume, incur or suffer to exist pursuant to the foregoing clauses (1)
and (3)-(8) any mortgage, lien, pledge, charge or encumbrance on the capital
stock of either of Alagasco or Taurus directly or indirectly owned by the
Corporation. The term "Excepted Encumbrances" means liens for taxes,
assessments or governmental charges not delinquent; liens securing
indebtedness existing in or relating to real estate acquired for right-of-way
purposes; easements or reservations in property of the Company by statute or
ordinance; liens and charges incidental to current construction activities;
obligations or duties created or imposed by municipalities or other public
authority affecting property of the Company; rights reserved to or vested in
any municipality or public authority to control or regulate the Company or use
of its property; irregularities or deficiencies of title with respect to
rights-of-way; and leases made or existing in the ordinary course of business
of the Company. The term "Excepted Property" generally means certain property
or equipment of the
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Corporation used in the ordinary course of business, including current assets,
vehicles, certain inventories and equipment, as more particularly defined in
the Indenture, and excludes capital stock issued by Alagasco and Taurus.
RESTRICTION ON SALE-LEASEBACK TRANSACTIONS. The Corporation will not enter
into any arrangement providing for the lease to the Corporation of any property
of the Corporation (except for temporary leases for a term, including any
renewal thereof, of not more than three years), which has been or is to be sold
or transferred by the Corporation to the lessor unless the proceeds of such
sale are at least equal to the fair value of such property and either: (i) the
Corporation would be entitled, under the sub-caption "Restriction on Liens," to
create, assume, incur or suffer to exist a mortgage, lien, pledge, charge or
encumbrance to secure indebtedness on the property to be leased without equally
and ratably securing the Offered Securities; or (ii) the Corporation shall, or
covenants that it will, within 120 days of the effective date of any such
arrangement (or in the case of clause (a) below, within six months thereafter
pursuant to a commitment entered into within such 120 day period), apply an
amount not less than the fair value of such property to any one or more of (a)
the optional redemption of, or the purchase and retirement of, the Debt
Securities, or (b) the payment or other retirement of Funded Debt (as defined
therein) incurred or assumed by the Corporation which ranks pari passu with the
Debt Securities (other than Funded Debt owned by the Corporation), or (c) the
purchase at not more than the fair value of property by the Corporation (other
than property of the Corporation involved in such sale).
SATISFACTION AND DISCHARGE; DEFEASANCE
The Indenture, with respect to any and all series of Debt Securities (except
for certain specified surviving obligations) will be discharged and canceled
upon the satisfaction of certain conditions, including: (a) the payment in full
of the principal of (and premium, if any) and interest on all series of the
Debt Securities or the deemed payment in full of such Debt Securities, as
described below; (b) the payment by the Corporation of all other sums required
under the Indenture; and (c) the delivery of a certificate by the Corporation
to the Trustee stating that all conditions precedent relating to the
satisfaction and discharge of the Indenture have been complied with.
In addition, the Corporation may at any time (i) terminate certain of its
obligations under the Indenture with respect to Debt Securities of any series
("legal defeasance") or (ii) terminate its obligations under certain covenants
set forth in the Indenture with respect to Debt Securities of any series,
including the provisions described above under "Certain Covenants--Restriction
on Liens," "--Restriction on Sale-Leaseback Transactions" and "Consolidation,
Merger and Sale of Assets" (after which any omission to comply with such
obligations shall not constitute a Default with respect to such Debt
Securities) ("covenant defeasance"). To exercise either legal defeasance or
covenant defeasance, the Corporation must irrevocably deposit in trust with the
Trustee, for the benefit of the Holders, cash or Eligible Obligations, or a
combination thereof, in such amounts as will be sufficient to pay the principal
of and premium and interest, if any, due and to become due on the Debt
Securities of such series on or prior to their redemption or maturity date in
accordance with the terms of the Indenture and such Debt Securities; provided
that such money or the proceeds of such Eligible Obligations shall either (i)
have been on deposit with the Trustee for a period of at least 90 days, or (ii)
the Trustee shall have received an Opinion of Counsel to the effect that
payments to Holders with such moneys as proceeds are not recoverable as a
preference under any applicable United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors. The Corporation must also comply with certain other
conditions, including the delivery of an opinion of counsel to the effect that
the holders of such Debt Securities will not realize income, gain or loss for
Federal income tax purposes as a result of such defeasance but will realize
income, gain or loss on the Debt Securities, including payments of interest
thereon, in the same manner and at the same times as would have been the case
if such defeasance had not occurred. In the case of legal defeasance, the
opinion of counsel must be accompanied by a ruling of the Internal Revenue
Service issued to the Corporation, or based on a change in law or regulation
occurring after the date of the Indenture.
Eligible Obligations include: (a) with respect to Debt Securities denominated
in United States Dollars, Government Obligations (which include direct
obligations of, or obligations unconditionally guaranteed by, the
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United States of America entitled to the benefit of the full faith and credit
thereof and certificates, depository receipts or other instruments which
evidence a direct ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof); and (b) with respect
to Debt Securities denominated in a currency other than United States Dollars
or in a composite currency, such other obligations or instruments as shall be
specified with respect to such Debt Securities, as contemplated by the
Indenture.
GOVERNING LAW
The Debt Securities and the Indenture will be governed by, and construed in
accordance with, the laws of the State of New York.
U.S. FEDERAL TAXATION
The Prospectus Supplement will contain a brief summary of the relevant
United States federal income tax laws applicable to the Offered Debt
Securities.
DESCRIPTION OF CAPITAL STOCK
The Corporation's authorized capital stock consists of 30,000,000 shares of
Common Stock, par value $.01 per share (hereinafter and hereinbefore referred
to as the "Common Stock"), and 5,000,000 shares of Preferred Stock, par value
$.01 per share ("Preferred Stock"), each of which is described below. On
August 27, 1996, 11,119,466 shares of Common Stock were issued and
outstanding, excluding shares held in treasury, and no shares of Preferred
Stock were issued or outstanding. The summary description of the capital stock
of the Corporation contained herein is necessarily general and reference
should be made in each case to the Corporation's Restated Certificate of
Incorporation, Certificate of Adoption of Resolutions Designating Series A
Junior Participating Preferred Stock, Bylaws and Rights Agreement which are
exhibits to the Registration Statement of which this Prospectus is a part.
COMMON STOCK
GENERAL. Subject to any prior rights of the Preferred Stock then
outstanding, holders of Common Stock are entitled to receive such dividends as
and when they are declared by the Board of Directors out of funds legally
available therefor. Subject to the rights, if any, of the Preferred Stock, all
voting rights are vested in the holders of shares of Common Stock, each share
being entitled to one vote. The holders of Common Stock are not entitled to
cumulative voting rights in the election of directors, which means that the
holders of more than 50% of the shares of Common Stock voting for election of
directors can elect 100% of the directors if they choose to do so and, in such
event, the holders of the remaining less than 50% of the shares voting for the
election of directors are not able to elect any person or persons to the Board
of Directors. Subject to any prior rights of the Preferred Stock, in the event
of liquidation, the holders of Common Stock are entitled to receive pro rata
any assets distributable to shareholders in respect of shares held by them.
Holders of Common Stock do not have any right to subscribe to any additional
securities which may be issued by the Company. The outstanding shares of
Common Stock are fully paid and nonassessable.
SPECIAL VOTE REQUIREMENTS FOR CERTAIN TRANSACTIONS. The Restated Certificate
of Incorporation of the Corporation provides that certain specified
transactions or a series of such transactions with an "Interested Stockholder"
(generally defined as a holder of 10% or more of the voting power of the
outstanding voting stock of the Corporation or an affiliate of such a holder)
require approval by the vote of the holders of at least 80% of the then
outstanding shares of voting stock of the Corporation, except in cases in
which either certain price criteria and procedural requirements are satisfied
or the transaction is approved by a majority of the members of the Board of
Directors who are unaffiliated with, and not a nominee of, the Interested
Stockholder and who were directors before the Interested Stockholder became an
Interested Stockholder (or successors to such directors who are neither
affiliated with, nor the nominee of, the Interested Stockholder and who were
recommended to succeed
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their predecessors by a majority of the directors meeting such criteria). The
specified transactions include (i) a merger or consolidation of the
Corporation or any of its subsidiaries with or into an Interested Stockholder
or any other corporation which is, or after such merger or consolidation would
be, an Affiliate (as defined) of an Interested Stockholder; (ii) the sale,
lease, exchange, mortgage, pledge, transfer or other disposition of assets of
the Corporation or any of its subsidiaries having a value of $1,000,000 or
more to or with an Interested Stockholder or any Affiliate of an Interested
Stockholder; (iii) the issuance or transfer of stock or other securities of
the Corporation or of any of its subsidiaries to an Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash, securities
or other property having a value of $1,000,000 or more; (iv) the adoption of
any plan or proposal for the liquidation or dissolution of the Corporation
proposed by or on behalf of an Interested Stockholder or any Affiliate of any
Interested Stockholder; or (v) any reclassification of securities,
recapitalization, merger or consolidation of the Corporation with a subsidiary
or any similar transaction which has the effect, directly or indirectly, of
increasing an Interested Stockholder's or any Affiliate of an Interested
Stockholder's proportionate share of the outstanding equity securities (or
securities convertible thereinto) of the Corporation or any of its
subsidiaries. At present, the Corporation is not aware of the existence of any
shareholder who would be an Interested Stockholder.
PROVISIONS WITH RESPECT TO BOARD OF DIRECTORS. The Restated Certificate of
Incorporation of the Corporation provides that the members of the Board of
Directors are divided into three classes as nearly equal as possible. Each
class is elected for a three-year term. At each annual meeting of
shareholders, one-third of the members of the Board of Directors are elected
for a three-year term, and the other directors remain in office until their
three-year terms expire. Thus, control of the Board of Directors cannot be
changed in one year; rather, at least two annual meetings must be held before
a majority of the members of the Board of Directors can be changed.
Vacancies on the Board of Directors other than those caused by an increase
in the number of directors may be filled by a majority of the remaining
directors though less than a quorum. A director elected to fill such a vacancy
is elected to serve until the next annual meeting of shareholders. Any
directorship to be filled as a result of an increase in the number of
directors may be filled only by election at an annual meeting or at a special
meeting of shareholders called for such purpose unless Alabama law at such
time permits such vacancy to be filled by a majority of the remaining
directors.
The Alabama Business Corporation Act provides (unless otherwise provided in
a corporation's charter) that a director, or the entire Board of Directors,
may be removed by the shareholders at a meeting of shareholders expressly
called for that purpose with or without cause by vote of the holders of a
majority of the shares of the Corporation then entitled to vote on election of
directors. The Restated Certificate of Incorporation and Bylaws of the
Corporation, however, provide that the affirmative vote of the holders of at
least 80% of the voting power of the outstanding capital stock entitled to
vote for the elections of directors is required to remove a director or the
entire Board of Directors from office.
SPECIAL VOTE REQUIREMENTS FOR CERTAIN AMENDMENTS TO RESTATED CERTIFICATE OF
INCORPORATION. Certain portions of the Restated Certificate of Incorporation
of the Corporation described in certain of the preceding paragraphs, including
those related to business combinations and the classified Board of Directors,
may be amended only by the affirmative vote of the holders of 80% of the
voting power of the outstanding voting stock of the Corporation.
POSSIBLE EFFECTS OF SPECIAL PROVISIONS. Certain of the provisions contained
in the Restated Certificate of Incorporation and Bylaws of the Corporation
described above have the effect of making it more difficult to change the
Board of Directors and may make the Board of Directors less responsive to
shareholder control. Certain of these provisions also may tend to discourage
attempts by third parties to acquire the Corporation because of the additional
time and expense involved and a greater possibility of failure, and, as a
result, may decrease the likelihood of an acquisition of the Corporation by a
potential purchaser or adversely affect the price that a potential purchaser
would be willing to pay for the capital stock of the Corporation.
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PREFERRED STOCK PURCHASE RIGHTS. In order to protect the Corporation's
shareholders from coercive or unfair takeover tactics, the Corporation's Board
of Directors on July 27, 1988 adopted a Shareholder Rights Plan (the
"Shareholder Rights Plan"). Pursuant to the Shareholder Rights Plan, each
share of the Corporation's Common Stock outstanding has associated with it
two-thirds of one right (a "Right") to purchase, until July 27, 1998 (or, if
earlier, the redemption of the Rights), a unit consisting of 1/100th of one
share of Series A Junior Participating Preferred Stock (the "Unit") at an
exercise price of $80 per Unit, subject to certain antidilution and other
adjustments as provided in the Shareholder Rights Plan. The Shareholder Rights
Plan also approved the further issuance of Rights for all shares of Common
Stock that are subsequently issued unless otherwise specified by the Board.
Accordingly and subject to adjustment as provided above, two-thirds of a Right
will be issued for each share of Common Stock offered hereby. Until certain
specified conditions exist, the Rights will be represented by the certificates
for the Common Stock and will not be exercisable or transferable apart from
the certificates for the Common Stock.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the
Corporation without conditioning the offer on a substantial number of Rights
being acquired. The Rights should not interfere with any merger or other
business combination approved by the Board of Directors of the Corporation
since, among other things, the Board of Directors may, at its option, at any
time until 10 days (subject to extension) following the date on which a person
or group acquires 20% or more of the outstanding Common Stock, except under
certain circumstances, redeem all but not less than all the then outstanding
Rights at $.02 per Right.
A Rights Agreement dated as of July 27, 1988, between the Corporation and
AmSouth Bank, N.A., as amended, specifies the terms of the Rights and the
foregoing description of the Rights is qualified in its entirety by reference
to such Rights Agreement, which is an exhibit to the Corporation's
Registration Statement on Form 8-A, as amended, File No. 1-7810, dated August
8, 1988, and which is incorporated by reference herein. See "Incorporation of
Certain Documents by Reference".
LIMITATIONS ON DIVIDEND PAYMENTS. The Corporation is subject to several
indentures and other debt instruments which restrict the Corporation's ability
to pay dividends. Under the most restrictive indenture or other debt
instrument, the Corporation is required to maintain a consolidated tangible
net worth of not less than $80,000,000. At June 30, 1996, the Corporation had
a consolidated tangible net worth of approximately $194,657,000 and therefore,
under the indenture restriction, the Corporation could make dividend payments
in respect of its Common Stock of $114,657,000.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for the
Common Stock is Harris Trust Company of New York, 77 Water Street, New York,
New York 10005. The Company's Common Stock is listed on the New York Stock
Exchange.
PREFERRED STOCK
GENERAL. Under the Corporation's Restated Certificate of Incorporation, the
Board of Directors is authorized without further shareholder action to provide
for the issuance of up to 5,000,000 shares of Preferred Stock, in one or more
series, with such voting powers, or without voting powers, and with such
designations and relative rights and preferences as shall be set forth in
resolutions providing for the issue thereof adopted by the Board of Directors.
It is not possible to state the actual effect of the authorization and
issuance of Preferred Stock upon the rights of holders of the Common Stock
unless and until the Board of Directors determines the attributes of the
Preferred Stock and the specific rights of its holders. Such effects may
include, however, (i) restrictions on dividends on Common Stock if dividends
on Preferred Stock have not been paid; (ii) dilution of the voting power of
Common Stock to the extent that Preferred Stock has voting rights, or to the
extent that any Preferred Stock series is convertible into Common Stock; (iii)
dilution of the equity interest of Common Stock unless Preferred Stock is
redeemed by the Corporation; and (iv) limitation on the right of holders of
Common Stock to share in the Corporation's assets upon liquidation until
satisfaction of any liquidation preference granted to Preferred Stock.
Although the ability of the Corporation to issue Preferred Stock provides
flexibility in
15
<PAGE>
connection with possible acquisitions and other corporate purposes, its
issuance could be used to impede an attempt by a third party to acquire a
majority of the outstanding voting stock of the Corporation.
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK. In connection with the
adoption of the Shareholder Rights Plan described above, on July 27, 1988, the
Corporation's Board of Directors designated 150,000 shares of the
Corporation's authorized but unissued Preferred Stock as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred Stock"). The terms of
the Series A Preferred Stock are such that one share of Series A Preferred
Stock will be approximately equivalent to 100 shares of Common Stock. Each
1/100th of one share of Series A Preferred Stock has the same dividend and
voting right as one full share of Common Stock, except that, if dividend
payments on the Series A Preferred Stock are in arrears for six consecutive
quarters, the Corporation's ability to pay dividends on its Common Stock is
restricted and holders of the Series A Preferred Stock will have enhanced
voting rights. In addition each 1/100th of one share of Series A Preferred
Stock has a minimum quarterly dividend of $.05 per 1/100th of one share, a
liquidation preference and certain other rights preferential to Common Stock.
Pursuant to the Shareholder Rights Plan, Rights have been issued to the
Corporation's shareholders, but such Rights have not yet become exercisable
and no shares of Series A Preferred Stock have been issued.
PLAN OF DISTRIBUTION
The Corporation may sell the Offered Securities being offered hereby to
underwriters or through agents or directly to purchasers. The applicable
Prospectus Supplement will set forth the terms of the offering of the Offered
Securities to which such Prospectus Supplement relates, including the name or
names of any underwriters or agents with whom the Corporation has entered into
arrangements with respect to the sale of such Offered Securities, the public
offering or purchase price of such Offered Securities and the net proceeds to
the Corporation from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any discounts and commissions allowed
or paid to dealers, if any, any commissions allowed or paid to agents, and the
securities exchanges, if any, on which the Offered Securities will be listed.
The Offered Securities may be purchased to be re-offered to the public
through underwriting syndicates led by one or more managing underwriters, or
through one or more underwriters. The underwriter or underwriters with respect
to an underwritten offering of the Offered Securities will be named in any
applicable Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or underwriters will
be set forth on the cover page of any applicable Prospectus Supplement. Unless
otherwise set forth in any applicable Prospectus Supplement, the obligations
of the underwriters to purchase the Offered Securities will be subject to
certain conditions precedent, and each of the underwriters with respect to a
sale of Offered Securities will be obligated to purchase all of its allocated
Offered Securities if any are purchased. Any initial public offering price and
any discount or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Offered Securities may be offered and sold by the Corporation, directly or
through agents designated by the Corporation from time to time, which agents
may be affiliates of the Corporation. Any agent involved in the offer and sale
of the Offered Securities in respect of which this Prospectus is being
delivered will be named, and any commissions payable by the Corporation to
such agent will be set forth, in any applicable Prospectus Supplement. Unless
otherwise indicated in any applicable Prospectus Supplement, any such agent
will be acting on a reasonable efforts basis for the period of its
appointment.
The Debt Securities will be new issues of securities with no established
trading market. Any underwriters to whom such Debt Securities are sold by the
Corporation for public offering and sale may make a market in such Debt
Securities, but such underwriters 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 Offered Securities.
16
<PAGE>
Any underwriter or agent participating in the distribution of the Offered
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Offered Securities so offered and sold and any
discounts or commissions received by them from the Corporation and any profit
realized by them on the sale or resale of the Offered Securities may be deemed
to be underwriting discounts and commissions under the Securities Act.
Underwriters, agents and their controlling persons may be entitled, under
agreements entered into with the Corporation, to indemnification by the
Corporation against certain civil liabilities, including liabilities under the
Securities Act or to contribution with respect to payments which the
underwriters or agents may be required to make in respect thereof.
LEGAL OPINIONS
The legality of the Offered Securities being offered hereby will be passed
upon for the Corporation by Bradley, Arant, Rose & White, Birmingham, Alabama,
and certain legal matters will be passed upon for any underwriters, dealers or
agents by Winthrop, Stimson, Putnam & Roberts, New York, New York. As of June
30, 1996, the partners and associates of Bradley, Arant, Rose & White
beneficially owned approximately 5,000 shares of Common Stock of the
Corporation.
EXPERTS
The consolidated balance sheets of Energen Corporation and its subsidiaries
as of September 30, 1995 and 1994 and the consolidated statements of income,
shareholders' equity, and cash flows for each of the three years in the period
ending September 30, 1995, which are included in Energen's annual report on
Form 10-K for the year ended September 30, 1995 and which are incorporated by
reference in the Prospectus, have been incorporated herein in reliance on the
report, which includes an explanatory paragraph regarding Energen changing its
method of accounting for certain other post-retirement benefits effective
October 1, 1993, of Coopers & Lybrand L.L.P., independent accountants, given
on the authority of that firm as experts in auditing and accounting.
17
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Registrant estimates that the expenses to be incurred and borne by it in
connection with the proposed sale of the Common Stock and Debt Securities will
be as follows:
<TABLE>
<S> <C>
Registration fee............................................... $ 86,207.00
*Listing fees................................................... 10,000.00
*Rating Agency fees............................................. 60,000.00
*Blue Sky expenses.............................................. 7,500.00
*Transfer Agent's fees.......................................... 1,000.00
*Fees of Trustee, including counsel and authentication fee...... 7,500.00
*Printing expenses.............................................. 20,000.00
*Legal fees and expenses........................................ 145,000.00
*Accounting fees................................................ 8,000.00
*Miscellaneous expenses......................................... 30,000.00
-----------
*Total expenses............................................... $375,207.00
===========
</TABLE>
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Article XI of the Registrant's Restated Certificate of Incorporation
provides as follows:
XI. Limitation of Liability:
11.01 A director of the Corporation shall not be liable to the
Corporation or its shareholders for money damages for any action taken, or
failure to take action, as a director, except for (i) the amount of a
financial benefit received by such director to which such director is not
entitled; (ii) an intentional infliction of harm by such director on the
Corporation or its shareholders; (iii) a violation of Section 10-2B-8.33 of
the Code of Alabama of 1975 or any successor provision to such section;
(iv) an intentional violation by such director of criminal law; or (v) a
breach of such director's duty of loyalty to the Corporation or its
shareholders. If the Alabama Business Corporation Act, or any successor
statute thereto, is hereafter amended to authorize the further elimination
or limitation of the liability of a director of a corporation, then the
liability of a director of the Corporation, in addition to the limitations
on liability provided herein, shall be limited to the fullest extent
permitted by the Alabama Business Corporation Act, as amended, or any
successor statute thereto. The limitation on liability of directors of the
Corporation contained herein shall apply to liabilities arising out of acts
or omissions occurring subsequent to the adoption of this Article XI and,
except to the extent prohibited by law, to liabilities arising out of acts
or omissions occurring prior to the adoption of this Article XI. Any repeal
or modification of this Article XI by the shareholders of the Corporation
shall be prospective only and shall not adversely affect any limitation on
the liability of a director of the Corporation existing at the time of such
repeal or modification.
(b) Section 2.06 of the Registrant's Bylaws provides as follows:
2.06 Indemnification of Directors and Officers; Liability Insurance--
(a) The Corporation does hereby indemnify any officer or director of the
Corporation who was, or is, a party, or is threatened to be made a party,
to any threatened, pending, or completed claim, action, or proceeding,
whether civil, criminal, administrative, or investigative, including
appeals, other than an action by or in the right of the Corporation, by
reason of the fact that he is or was a director, an officer, an employee,
or an agent of the Corporation or is, or was, serving at the request of the
Corporation as a director, officer partner, employee, or agent of another
corporation, partnership, joint venture, trust, or other
II-1
<PAGE>
enterprise against expenses, including attorneys' fee, judgments, fines,
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonably cause to believe his conduct was unlawful.
The termination of any action or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere, or its equivalent, shall
not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Corporation and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(b) The Corporation does hereby indemnify any officer or director of the
Corporation who was, or is, a party, or is threatened to be made a party,
to any threatened, pending, or completed claim or action by, or in the
right of, the Corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, an officer, an employee, or an agent
of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against expenses,
including attorneys' fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Corporation, except that no indemnification
shall be made in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the Corporation unless, and only to the
extent that the court in which such action was brought shall determine upon
application that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
(c) To the extent that a director or an officer of the Corporation has
been successful on the merits or otherwise in defense of any action or
proceeding referred to in subsections (a) and (b) of this section or in
defense of any claim, issue, or matter therein, he shall be indemnified
against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection therewith, notwithstanding that he has not
been successful on any other claim, issue, or matter in any such action or
proceeding.
(d) Any indemnification under subsections (a) and (b) of this section,
unless ordered by a court, shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification
of the director or officer is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsections (a) and (b)
of this section. Such determination shall be made:
(i) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to, or who have been
wholly successful on the merits or otherwise with respect to, such
claim, action, or proceeding;
(ii) If such a quorum is not obtainable, or even if obtainable a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or
(iii) By the stockholders.
(e) Expenses, including attorneys' fees, incurred in defending a civil or
criminal claim, action, or proceeding may be paid by the Corporation in
advance of the final disposition of such claim, action, or proceeding as
authorized in the manner provided in subsection (d) of this section upon
receipt of an undertaking by or on behalf of the director or officer to
repay such amount if, and to the extent that, it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this section.
(f) The indemnification authorized by this section shall not be deemed
exclusive of, and shall be in addition to, any other rights, whether
created prior or subsequent to the enactment of this section, to which
those indemnified may be entitled under any statute, rule of law, provision
of articles of incorporation, by-law, agreement, or vote of stockholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office and
shall continue as to a person who has ceased to be a director or an
officer, and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
II-2
<PAGE>
(g) The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director or an officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against any
liability asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the provisions
of this section."
(c) In addition to the foregoing provisions of the Bylaws of the Registrant,
directors, officers and controlling persons of the Registrant may be
indemnified by the Registrant pursuant to the provisions of Sections 10-2B-
8.50 to 10-2B-8.58 of the Code of Alabama of 1975, as amended, which indemnity
may be broader than that provided by the Registrant's Bylaws.
(d) In addition, the Registrant maintains officers' and directors' liability
insurance.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1(a) Form of Selling Agency Agreement.
1(b) Form of Common Stock Underwriting Agreement.
*4(a) Restated Conformed Certificate of Incorporation of the Registrant,
as amended through February 3, 1995, which was filed as Exhibit
3(f) to the Registrant's Annual Report on Form 10-K for the year
ended September 30, 1995 (File No. 1-7810).
*4(b) Certificate of Adoption of Resolutions Designating Series A Junior
Participating Preferred Stock, adopted June 27, 1988, which was
filed as Exhibit 4(e) to the Registrant's Registration Statement
on Form S-2 (Registration No. 33-25435).
*4(c) Bylaws of the Registrant, which were filed as Exhibit 4(e) to the
Registrant's Registration Statement on Form S-8 (Registration No.
33-14855).
*4(d) Rights Agreement, dated as of July 27, 1988, between Energen
Corporation and AmSouth Bank N.A., Rights Agent, which was filed
as Exhibit I to the Registrant's Registration Statement on Form 8-
A (File No. 1-7810).
*4(e) Amendment of Rights Agreement, dated as of February 28, 1990,
between Energen Corporation and AmSouth Bank N.A., Rights Agent,
which was filed as Exhibit 2 to Registrant's Form 8 Amendment No.
2 to its Registration Statement on Form 8-A (File No. 1-7810).
*4(f) Indenture, dated as of January 1, 1992, between the Registrant and
Boatmen's Trust Company, Trustee, which was filed as Exhibit 4 to
the Registrant's Registration Statement on Form S-3 (Registration
No. 33-44936).
*4(g) Indenture, dated as of March 1, 1993, between the Registrant and
Boatman's Trust Company, Trustee, which was filed as Exhibit 4 to
the Registrant's Registration Statement on Form S-3 (Registration
No. 33-25435).
*4(h) Indenture dated as of November 1, 1993, between Alabama Gas
Corporation and NationsBank of Georgia, National Association,
Trustee, which was filed as Exhibit 4(k) to Alabama Gas's
Registration Statement on Form S-3 (Registration No. 33-70466).
4(i) Form of Indenture with respect to the Debt Securities.
5 Opinion of Bradley, Arant, Rose & White.
12 Computation of Ratios of Earnings to Fixed Charges.
23(a) Consent of Bradley, Arant, Rose & White (contained in their
opinion filed as Exhibit 5 to this Registration Statement).
23(b) Consent of Coopers & Lybrand L.L.P.
24 Power of attorney authorizing execution of registration statement
on Form S-3 on behalf of certain directors of the Registrant.
25 Statement of Eligibility and Qualification of the Trustee under
the Trust Indenture Act of 1939 on Form T-1.
</TABLE>
- --------
* Incorporated by reference.
II-3
<PAGE>
ITEM. 17. UNDERTAKINGS.
(a) 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 information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (1)(i)
and (1)(ii) above 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 section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
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 any
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such labilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of such registrant in the successful defense of any
action, suit or proceeding) is asserted against the registrant by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-4
<PAGE>
(d) The undersigned Registrant hereby undertakes that, (1) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as a part of this Registration
Statement in reliance upon rule 430A and contained in a form of prospectus
filed pursuant to Rules 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be a part of this Registration Statement at the time it was
declared effective, and (2) for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment if any that contains
a form of prospectus shall be deemed to be a new registration statement
relating to the Securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-5
<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 BIRMINGHAM, STATE OF ALABAMA, ON AUGUST 29, 1996.
Energen Corporation
/s/ Geoffrey C. Ketcham
By: _________________________________
GEOFFREY C. KETCHAM
ITS EXECUTIVE VICE PRESIDENT,
TREASURER AND
CHIEF FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
* Director August 29, 1996
- -------------------------------------
J. MASON DAVIS, JR.
* Director August 29, 1996
- -------------------------------------
STEPHEN D. BAN
* Director August 29, 1996
- -------------------------------------
WALLACE L. LUTHY
* Director August 29, 1996
- -------------------------------------
JAMES S. M. FRENCH
/s/ Geoffrey C. Ketcham Executive Vice August 29, 1996
- ------------------------------------- President,
GEOFFREY C. KETCHAM Treasurer and Chief
Financial Officer
(Principal
Accounting Officer)
* Chairman of the August 29, 1996
- ------------------------------------- Board Chief
REX J. LYSINGER Executive Officer
and Director
II-6
<PAGE>
SIGNATURE TITLE DATE
* Director August 29, 1996
- -------------------------------------
JUDY M. MERRITT
* Director August 29, 1996
- -------------------------------------
DRAYTON NABERS, JR.
* Director August 29, 1996
- -------------------------------------
GEORGE S. SHIRLEY
* President, Chief August 29, 1996
- ------------------------------------- Operating Officer
WM. MICHAEL WARREN, JR. and Director
/s/ Geoffrey C. Ketcham
*By:_______________________________ August 29, 1996
GEOFFREY C. KETCHAM,
ATTORNEY-IN-FACT
II-7
<PAGE>
REGISTRATION STATEMENT ON FORM S-3 OF ENERGEN CORPORATION
----------------
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1(a) Form of Selling Agency Agreement.
1(b) Form of Common Stock Underwriting Agreement.
*4(a) Restated Conformed Certificate of Incorporation of the Registrant, as
amended through February 3, 1995, which was filed as Exhibit 3(f) to
the Registrant's Annual Report on Form 10-K for the year ended
September 30, 1995 (File No. 1-7810).
*4(b) Certificate of Adoption of Resolutions Designating Series A Junior
Participating Preferred Stock, adopted June 27, 1988, which was filed
as Exhibit 4(e) to the Registrant's Registration Statement on Form S-2
(Registration No. 33-25435).
*4(c) Bylaws of the Registrant, which were filed as Exhibit 4(e) to the
Registrant's Registration Statement on Form S-8 (Registration No. 33-
14855).
*4(d) Rights Agreement, dated as of July 27, 1988, between Energen
Corporation and AmSouth Bank N.A., Rights Agent, which was filed as
Exhibit I to the Registrant's Registration Statement on Form 8-A (File
No. 1-7810).
*4(e) Amendment of Rights Agreement, dated as of February 28, 1990, between
Energen Corporation and AmSouth Bank N.A., Rights Agent, which was
filed as Exhibit 2 to Registrant's Form 8 Amendment No. 2 to its
Registration Statement on Form 8-A (File No. 1-7810).
*4(f) Indenture, dated as of January 1, 1992, between the Registrant and
Boatmen's Trust Company, Trustee, which was filed as Exhibit 4 to the
Registrant's Registration Statement on Form S-3 (Registration No. 33-
44936).
*4(g) Indenture, dated as of March 1, 1993, between the Registrant and
Boatman's Trust Company, Trustee, which was filed as Exhibit 4 to the
Registrant's Registration Statement on Form S-3 (Registration No. 33-
25435).
*4(h) Indenture dated as of November 1, 1993, between Alabama Gas
Corporation and NationsBank of Georgia, National Association, Trustee,
which was filed as Exhibit 4(k) to Alabama Gas's Registration
Statement on Form S-3 (Registration No. 33-70466).
4(i) Form of Indenture with respect to the Debt Securities.
5 Opinion of Bradley, Arant, Rose & White.
12 Computation of Ratios of Earnings to Fixed Charges.
23(a) Consent of Bradley, Arant, Rose & White (contained in their opinion
filed as Exhibit 5 to this Registration Statement).
23(b) Consent of Coopers & Lybrand L.L.P.
24 Power of attorney authorizing execution of registration statement on
Form S-3 on behalf of certain directors of the Registrant.
25 Statement of Eligibility and Qualification of the Trustee under the
Trust Indenture Act of 1939 on Form T-1.
</TABLE>
- --------
* Incorporated by reference.
<PAGE>
Exhibit 1(a)
Energen Corporation
$___,000,000 Medium-Term Notes, Series A
Due Nine Months or More from Date of Issue
Selling Agency Agreement
_____________ __, 1996
New York, New York
[Agent's Name]
[Agent's Address]
Dear Sirs:
Energen Corporation, an Alabama corporation (the "Company"), confirms
its agreement with each of you with respect to the issue and sale by the Company
of up to $___,000,000 aggregate principal amount of its Medium-Term Notes,
Series A Due Nine Months or More from Date of Issue (the "Notes"). The Notes
will be issued under an indenture (the "Indenture") dated as of __________ __,
1996 between the Company and The Bank of New York, as trustee (the "Trustee").
Unless otherwise specifically provided for and set forth in a Pricing Supplement
(as defined below), the Notes will be issued in minimum denominations of $1,000
and in denominations exceeding such amount by integral multiples of $1,000, will
be issued only in fully registered form and will have the interest rates,
maturities and, if applicable, other terms set forth in such Pricing Supplement.
The Notes will be issued, and the terms thereof established, in accordance with
the Indenture and the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures") (unless a Terms Agreement (as defined in
Section 2(b)) modifies or otherwise supersedes such Procedures with respect to
the Notes issued pursuant to such Terms Agreement). The Procedures may be
amended only by written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall refer to any of you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term "Purchaser" shall refer to one of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to you collectively whether at any time any of you is acting in both such
capacities or in either such capacity.
<PAGE>
In acting under this Agreement, in whatever capacity, each of you is acting
individually and not jointly.
1. Representations and Warranties. The Company represents and
------------------------------
warrants to, and agrees with, you as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act"), and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (File Number: 333-______), including a basic prospectus, which has
become effective, for the registration under the Act of $250,000,0000
aggregate principal amount of debt and equity securities (the
"Securities"), including the Notes. Such registration statement, as amended
at the date of this Agreement, meets the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and complies in all other material
respects with said Rule. The Company has included in such registration
statement, or has filed or will file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act, a supplement or
supplements to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof (the
"Prospectus Supplement"). In connection with the sale of Notes, the
Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement (each a "Pricing Supplement") specifying the interest
rates, maturity dates and, if appropriate, other similar terms of the Notes
sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date
of a Terms Agreement and at the date of delivery by the Company of any
Notes sold hereunder (a "Closing Date"), (i) the Registration Statement, as
amended as of any such time, and the Prospectus, as supplemented as of any
such time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Securities Exchange Act of 1934 (the
"Exchange Act") and the respective rules thereunder; (ii) the Registration
Statement, as amended as of any such time, did not or will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and (iii) the Prospectus, as supplemented as of any
such time, will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under
-2-
<PAGE>
which they were made, not misleading; provided, however, that the Company
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makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
any of you specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (except insofar as
enforcement may be limited by applicable bankruptcy, reorganization,
fraudulent conveyance, insolvency or other laws affecting creditors' rights
and remedies generally, as may from time to time be in effect, and by the
availability of specific performance or of other equitable relief which is
subject to the discretion of the court before which any proceeding may be
brought) and such Notes will have been duly authorized, executed,
authenticated and, when paid for by the purchasers thereof, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which a document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to the
Securities contained in the Registration Statement at the Effective Date
(unless such basic prospectus has been amended by the Company subsequent to
the Effective Date, in which case "Basic Prospectus" shall mean the form of
basic prospectus as so amended, whether or not filed with the Commission
pursuant to Rule 424(b)). "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration Statement" shall
mean the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed
-3-
<PAGE>
under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, the Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(e) Neither the Company nor Alabama Gas Corporation nor Taurus
Exploration, Inc. (individually a "Subsidiary" and collectively the
"Subsidiaries") is in violation of its charter or by-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, agreement or other
instrument to which it is a party or by which it may be bound, the effect
of which is material to the Company or either of the Subsidiaries, and
neither the execution or delivery of this Agreement, the consummation of
the transactions herein contemplated, the fulfillment of the terms hereof
or of the Indenture or the Notes, nor compliance with the terms and
provisions hereof or of the Indenture or the Notes will conflict with, or
result in a breach of, or constitute a default under (i) the articles of
incorporation, by-laws, or any contract, agreement or other instrument to
which the Company or any of the Subsidiaries is a party or by which it may
be bound or (ii) any law, order, rule or regulation applicable to the
Company or any of the Subsidiaries of any court or any federal or state
governmental body having jurisdiction over the Company or any of the
Subsidiaries or over their respective properties.
(f) The Indenture has been duly authorized, executed and delivered
and constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other laws affecting creditors' rights generally
from time to time in effect, and by the availability of specific
performance or of other equitable relief which is subject to the discretion
of the court before which any proceeding may be brought) and has been
qualified under the Trust Indenture Act.
(g) Up to an aggregate principal amount of $40,000,000 of the Notes
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered and paid for
by the purchasers thereof, will constitute legal, valid and binding
-4-
<PAGE>
obligations of the Company and will be entitled to the benefits of the
Indenture.
(h) Neither the execution or delivery of this Agreement, the
consummation of the transactions herein contemplated, the fulfillment of
the terms hereof or of the Indenture or the Notes, nor compliance with the
terms and provisions hereof or of the Indenture or the Notes requires any
consent, approval, authorization or order of any court or governmental
agency or body, except such as may as have been obtained under the Act and
the Trust Indenture Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the sale of the Notes as
contemplated by this Agreement.
(i) The Company has filed an annual exemption statement on
Form U-3A-2 pursuant to Rule 2 under the Public Utility Holding Company Act
of 1935 (the "1935 Act"), and the Company is exempt from all of the
provisions of the 1935 Act except Section 9(a)(2) thereof and has received
no notice, request or inquiry from the Commission terminating or
threatening to terminate or questioning such exemption.
2. Appointment of Agents; Solicitation by the Agents of Offers to
--------------------------------------------------------------
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and
- ---------------------------------------
conditions set forth herein, the Company hereby authorizes each of the Agents to
act as its agent to solicit offers for the purchase of all or part of the Notes
from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the Prospectus
(and any supplement thereto) and in the Procedures. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but such Agent shall not, except as otherwise provided
in this Agreement, be obligated to disclose the identity of any purchaser or
have any liability to the Company in the event any such purchase is not
consummated for any reason. Except as provided in Section 2(b), under no
circumstances will any Agent be obligated to purchase any Notes for its own
account. It is understood and agreed, however, that any Agent may purchase
Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of instructions from the
Company, the Agents will forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company has advised them
-5-
<PAGE>
that such solicitation may be resumed. During the period of any such suspension
or suspensions, the Company shall be relieved of its obligation to provide to
the Agents the information, documents, certificates, opinions and letter
required pursuant to Sections 4(g), 4(j), 4(k) and 4(l) hereof. However,
whenever such a suspension is lifted, the Company shall be required to deliver
to the Agents, prior to the resumption of any sale of Securities hereunder, the
most recent information, documents, certificates, opinions and letter which
would have been required except for the suspension.
The Company agrees to pay each Agent a commission, on the Closing Date
with respect to each sale of Notes by the Company as a result of a solicitation
made by such Agent, in an amount equal to that percentage specified in Schedule
I hereto of the aggregate principal amount of the Notes sold by the Company.
Such commission shall be payable as specified on Schedule I or in the applicable
Terms Agreement.
Subject to the provisions of this Section and to the Procedures,
offers for the purchase of Notes may be solicited by an Agent as agent for the
Company at such time and in such amounts as such Agent deems advisable. The
Company may from time to time offer Notes for sale otherwise than through an
Agent; provided, however, that so long as this Agreement is in effect the
-------- -------
Company shall not solicit or accept offers to purchase Notes through any agent
other than an Agent.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold each
of you harmless against any loss, claim or damage arising from or as a result of
such default by the Company.
(b) Subject to the terms and conditions stated herein, whenever the
Company and any Agent determine that the Company shall sell Notes directly to
such Agent as Purchaser, such Agent will notify the Company and each such sale
of Notes shall be made in accordance with the terms of this Agreement and a
supplemental agreement relating to such sale. Each such supplemental agreement
(which may be either an oral or written agreement) is herein referred to as a
"Terms Agreement". Each Terms Agreement shall describe the Notes to be
purchased by the Purchaser pursuant thereto and shall specify the aggregate
principal amount of such Notes, the price to be paid to the Company for such
Notes, the maturity date of such Notes, the rate at which interest will be paid
on such Notes, the dates on which interest will be paid on such Notes and the
record date with respect to each such payment of interest, the Closing Date for
the purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery of
opinions of counsel, certificates from the Company or its officers or a letter
from the Company's independent public accountants as described in Section 6(b).
Any such Terms
-6-
<PAGE>
Agreement may also specify the period of time referred to in Section 4(m). Any
written Terms Agreement may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant
to a Terms Agreement shall be made not later than the Closing Date agreed to in
such Terms Agreement, against payment of funds to the Company in the net amount
due to the Company for such Notes by the method and in the form set forth in the
Procedures, unless otherwise agreed to between the Company and the Purchaser in
such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Purchaser at varying prices
from time to time or, if set forth in the applicable Terms Agreement and Pricing
Supplement, at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group and may reallow
to any broker or dealer any portion of the discount or commission payable
pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the Company agree to
--------------------------
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
----------
(a) Prior to the termination of the offering of the Notes (including
by way of resale by a Purchaser of Notes), the Company will not file any
amendment of the Registration Statement or supplement to the Prospectus
(except for (i) periodic or current reports filed under the Exchange Act,
(ii) a supplement relating to any offering of Notes providing solely for
the specification of or a change in pricing information including the
maturity dates, interest rates, issuance prices or other similar terms of
any Notes or (iii) a supplement relating to an offering of Securities other
than the Notes) unless the Company has furnished each of you a copy for
your review prior to filing and given each of you a reasonable opportunity
to comment on any such proposed amendment or supplement. Subject to the
foregoing sentence, the Company will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to you of such filing. The Company will promptly
advise each of you
-7-
<PAGE>
(i) when the Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of any offering of Notes, any amendment of the Registration
Statement shall have been filed or become effective, (iii) of any request
by the Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its reasonable efforts
to prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) notify each of you to suspend solicitation of offers to
purchase Notes (and, if so notified by the Company, each of you shall
forthwith suspend such solicitation and cease using the Prospectus as then
supplemented), (ii) prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to each
of you pursuant to paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in
all respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment
to the Registration Statement, if such an amendment is required, resume
your obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and will furnish to each of
you
-8-
<PAGE>
copies of such documents. In addition, on or prior to the date on which
the Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be described,
or which the Company proposes to describe, in a document filed pursuant to
the Exchange Act, the Company will furnish to each of you the information
contained or to be contained in such announcement. The Company also will
furnish to each of you copies of all press releases or announcements
furnished to news or wire services and any other material press releases
and announcements. The Company will promptly notify each of you of (i) any
decrease in the rating of the Notes or any other debt securities of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or (ii) any notice given
of any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change, as soon as the Company learns of any such decrease or
notice.
(d) As soon as practicable, the Company will make generally available
to its security holders and to each of you an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel, without
charge, copies of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus may be required by the Act, as
many copies of the Prospectus and any supplement thereto as you may
reasonably request.
(f) The Company will arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as any of you may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Notes, and will arrange for the determination of the
legality of the Notes for purchase by institutional investors; provided
that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action
which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Notes, in any jurisdiction where
it is not now so subject.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel
for the Company relating to the business, operations and affairs of the
Company, the Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes, this Agreement,
the Procedures and the performance by the Company and you of its and your
respective obligations
-9-
<PAGE>
hereunder and thereunder as any of you may from time to time and at any
time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the
fees and disbursements of its accountants and counsel, the cost of printing
or other production and delivery of the Registration Statement, the
Prospectus, all amendments thereof and supplements thereto, the Indenture,
this Agreement, any Terms Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the
Notes, the fees and disbursements, including fees of counsel, incurred in
compliance with Section 4(f), the fees and disbursements of the Trustee and
the fees of any agency that rates the Notes, (ii) reimburse each of you as
requested for all out-of-pocket expenses (including without limitation
advertising expenses), if any, incurred by you in connection with this
Agreement and (iii) pay the fees and expenses of your counsel incurred in
connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties
contained in this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for purposes
of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statement and Prospectus as
amended or supplemented at each such time). Each such acceptance by the
Company of an offer for the purchase of Notes shall be deemed to constitute
an additional representation, warranty and agreement by the Company that,
as of the settlement date for the sale of such Notes, after giving effect
to the issuance of such Notes, of any other Notes to be issued on or prior
to such settlement date and of any other Securities to be issued and sold
by the Company on or prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the
Company will not exceed the lesser of the principal amount of Securities
registered pursuant to the Registration Statement and the limit of the
bonded indebtedness of the Company as approved from time to time by the
Company's shareholders. The Company will inform you promptly upon your
request of the aggregate amount of Securities registered under the
Registration Statement which remain unsold.
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<PAGE>
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement relating
to any offering of Securities other than the Notes or providing solely for
the specification of or a change in the maturity dates, the interest rates,
the issuance prices or other similar terms of any Notes sold pursuant
hereto), the Company will deliver or cause to be delivered promptly to each
of you a certificate of the Company, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of the
Company, dated the date of the effectiveness of such amendment or the date
of the filing of such supplement, in form reasonably satisfactory to you,
of the same tenor as the certificate referred to in Section 5(d) but
modified to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the Commission and
to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement.
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii)
providing solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other similar terms of
any Notes sold pursuant hereto or (iii) setting forth or incorporating by
reference financial statements or other information as of and for a fiscal
quarter or fiscal year, unless, in the case of clause (iii) above, in the
reasonable judgment of any of you, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to
each of you a written opinion of Bradley, Arant, Rose & White (or other
counsel reasonably satisfactory to the Agents), counsel of the Company
satisfactory to each of you, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the opinion referred to
in Section 5(b) hereof but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in
lieu of such opinion, such counsel may furnish each of you with a letter to
the effect that you may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance (except
that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement).
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<PAGE>
(l) Each time that the Registration Statement or the Prospectus is
amended or supplemented to include or incorporate amended or supplemental
financial information, the Company shall cause its independent public
accountants promptly to furnish each of you a letter, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of the same tenor as the
letter referred to in Section 5(e) hereof with such changes as may be
necessary to reflect the amended and supplemental financial information
included or incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented to the date of such letter;
provided, however, that, if the Registration Statement or the Prospectus is
-------- -------
amended or supplemented solely to include or incorporate by reference
financial information as of and for a fiscal quarter, the Company's
independent public accountants may limit the scope of such letter, which
shall be satisfactory in form to each of you, to the unaudited financial
statements, the related "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and any other information of an
accounting, financial or statistical nature included in such amendment or
supplement, unless, in the reasonable judgment of any of you, such letter
should cover other information or changes in specified financial statement
line items.
(m) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of,
any debt securities issued or guaranteed by the Company (other than the
Notes being sold pursuant to such Terms Agreement).
(n) The Company confirms as of the date hereof, and each acceptance
by the Company of an offer to purchase Notes will be deemed an affirmation,
that the Company is in compliance with all provisions of Section 1 of Laws
of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business
-----------------------------------------------
with Cuba, and the Company further agrees that if it commences engaging in
---------
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes effective
with the Commission or with the Florida Department of Banking and Finance
(the "Department"), whichever date is later, or if the information reported
in the Prospectus, if any, concerning the Company's business with Cuba or
with any person or affiliate located in Cuba changes in any material way,
the Company will provide the Department notice of such business or change,
as appropriate, in a form acceptable to the Department.
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<PAGE>
(o) The Company will not issue and sell Notes in excess of
$40,000,000 unless, as of the Closing Date for each issuance beyond such
$40,000,000 limit, the Company furnishes or causes to be furnished to each
of you (a) resolutions of the shareholders of the Company certified by the
Secretary of the Company approving the issuance by the Company of
additional bonded indebtedness, which approval would cover the Notes to be
issued on such Closing Date and (b) the written opinion of Bradley, Arant,
Rose & White (or such other counsel reasonably satisfactory to the Agents),
counsel for the Company, satisfactory to each of you, with respect to such
issuance, of the same tenor as the opinions referred to in Sections 5(b)(v)
and (x).
5. Conditions to the Obligations of the Agents. The obligations of
-------------------------------------------
each Agent to solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission and as of each Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion of
Bradley, Arant, Rose & White (or such other counsel reasonably satisfactory
to the Agents), counsel for the Company, dated the Execution Time, 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 State
of Alabama, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or
conducts material business and wherein the failure to be so qualified
would have a material adverse effect on the business of the Company
and the subsidiaries taken as a whole;
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(ii) each of the Subsidiaries has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and Alabama Gas Corporation
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business, except where the failure to so qualify
does not have a material adverse effect on the business of the Company
and its subsidaries as a whole;
(iii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances (with the exception of those
encumbrances in the Indenture);
(iv) the Company's authorized equity capitalization is as set
forth in the Prospectus; and the Notes conform to the description
thereof contained in the Prospectus (subject to the insertion in the
Notes of the maturity dates, the interest rates and other similar
terms thereof which will be described in supplements to the Prospectus
as contemplated by the fourth sentence of Section 1(a) of this
Agreement);
(v) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, fraudulent
conveyance, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect, and by the availability
of specific performance or of other equitable relief which is subject
to the discretion of the court before which any proceeding may be
brought); and up to an aggregate principal amount of $40,000,000 of
the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will constitute
legal, valid and binding obligations of the Company entitled
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to the benefits of the Indenture (other than the indemnity provisions
contained in Section 8 hereof or Section 701 of the Indenture as to
which such counsel need express no opinion);
(vi) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries, of a character required to be disclosed in
the Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or
filed as required; and the statements included or incorporated by
reference in the Prospectus describing material contracts or
agreements relating to the Company fairly summarize such matters;
(vii) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been or will be made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened; and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe that the
Registration Statement at the Effective Date or at the Execution Time
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus includes
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein except such as have been obtained
under the Act
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and such as may be required under the blue sky laws of any
jurisdiction in connection with the sale of the Notes as contemplated
by this Agreement and such other approvals (specified in such opinion)
as have been obtained;
(x) neither the execution and delivery of the Indenture, the
issue and sale up to an aggregate principal amount of $40,000,000 of
the Notes, nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or constitute a
default under any law or the charter or by-laws of the Company or the
terms of any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its Subsidiaries is a party
or bound or any judgment, order, regulation or decree known to such
counsel to be applicable to the Company or any of its Subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any of its
Subsidiaries;
(xi) to the knowledge of such counsel no holders of securities
of the Company have rights to the registration of such securities
under the Registration Statement;
(xii) the information contained in the Prospectus under the
caption "Certain Tax Considerations" is a fair and accurate summary of
the principal Federal income tax consequences associated with the
ownership of the Notes; and
(xiii) the Company is exempt from all provisions of the 1935 Act
except Section 9(a)(2) thereof.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Alabama or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Agent and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials. References to the Prospectus in this paragraph (b) include
any supplements thereto at the date such opinion is rendered.
(c) Each Agent shall have received from Winthrop, Stimson, Putnam &
Roberts (or such other counsel reasonably satisfactory to the Company and the
Agents), counsel for the Agents, such opinion or opinions, dated the Execution
Time, with respect to the issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together with any
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supplement thereto) and other related matters as the Agents may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a certificate of
the Company, signed by the Chairman of the Board or the president and the
principal financial or accounting officer of the Company, dated the Execution
Time, to the effect that the signers of such certificate have reviewed the
Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date hereof and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a condition to
the obligation of the Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time, Coopers & Lybrand (or such other
accountants reasonably satisfactory to the Company and the Agents) shall have
furnished to each Agent a letter or letters (which may refer to letters
previously delivered to the Agents), dated as of the Execution Time, in form and
substance satisfactory to the Agents, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements, financial
statement schedules and pro forma financial statements, if any,
included or incorporated by reference in the Registration Statement
and the Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting
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requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; the
performance of the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information,
-----------------------------
on the latest unaudited financial statements, if any, included or
incorporated by reference in the Prospectus; a reading of the minutes
of the meetings of the stockholders, directors, audit and finance
committees of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent
audited financial statements included or incorporated in the
Prospectus (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally accepted
auditing standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter),
nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated
by reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related published
rules and regulations thereunder; and that any material modifications
should be made to said unaudited financial statements for them to be
in conformity with generally accepted accounting principles;
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule information),
audited or unaudited, included or incorporated in the Registration
Statement and the Prospectus, there were any changes, at a specified
date not more than five business days prior to the date of the letter,
in the common stock, preferred stock, current liabilities or long-term
debt of the Company and its subsidiaries or decreases in the total
common stockholders' equity of the Company as compared with the
amounts shown on the most recent balance sheet included or
incorporated in the Registration Statement and the Prospectus, or for
the period from the most recent fiscal year of the Company to the date
of the most recent available financial statements (audited or
unaudited) of the Company there
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were any decreases, as compared with the corresponding period in the
preceding year in operating revenues, operating income, other income
or net income of the Company and its subsidiaries except in all
instances for changes or decreases set forth in such letter, in which
case the letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not deemed
necessary by the Agents; or
(3) the amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the
Prospectus do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding amounts
in the audited financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Prospectus and in Exhibit 12 to the Registration Statement,
including the information included or incorporated in Items 1, 2, 6, 7 and
11 of the Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the information included in
the "Management's Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated in the Registration Statement and the Prospectus, on the basis
of a reading of the unaudited pro forma financial statements, carrying out
certain specified procedures, inquiries of certain officials of the Company
and the acquired company who have responsibility for financial and
accounting matters, and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply in form in
all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not
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<PAGE>
been properly applied to the historical amounts in the compilation of such
statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions
of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Winthrop, Stimson, Putnam & Roberts, counsel for the
Agents, at One Battery Park Plaza, New York, New York 10004-1490, on the date
hereof.
6. Conditions to the Obligations of a Purchaser. The obligations of
--------------------------------------------
a Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) If filing of the Prospectus or any supplement thereto is required
pursuant to Rule 424(b), the Prospectus and any such supplement shall have
been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened; and shareholder approval sufficient to
authorize the issuance and sale of the Notes to be sold to the Purchaser
shall be obtained by the Company.
(b) To the extent agreed to between the Company and the Purchaser in
a Terms Agreement, the Purchaser shall have received, appropriately
updated, (i) a certificate of the Company, dated as of the Closing Date, to
the effect set forth in Section 5(d) (except that references to the
Prospectus shall be to the Prospectus as supplemented as of the date of
such Terms Agreement), (ii) the opinion of
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Bradley, Arant, Rose & White (or other counsel reasonably satisfactory to
the Agents), counsel for the Company, dated as of the Closing Date, to the
effect set forth in Section 5(b), (iii) the opinion of Winthrop, Stimson,
Putnam & Roberts (or other counsel reasonably satisfactory to the Company),
counsel for the Purchaser, dated as of the Closing Date, to the effect set
forth in Section 5(c), and (iv) letter of Coopers & Lybrand (or other
independent accountants reasonably satisfactory to the Agents), independent
accountants for the Company, dated as of the Closing Date, to the effect
set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and the applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be canceled at, or at any time prior to, the respective Closing Date
by the Purchaser. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
------------------------------------------------------------
(a) The Company agrees that any person who has agreed to purchase and pay for
any Note pursuant to a solicitation by any of the Agents shall have the right to
refuse to purchase such Note if, at the Closing Date therefor, any condition set
forth in Section 5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall have the
right to refuse to purchase such Note if, subsequent to the agreement to
purchase such Note, any change, condition or development specified in any of
Sections 9(b)(i) through (v) shall have occurred (with the judgment of the Agent
which presented the offer to purchase such Note being substituted for any
judgment of a Purchaser required therein) the effect of which is, in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the sale and delivery of such Note (it being understood that under no
circumstance shall any such Agent have any duty or obligation to the Company or
to any such person to exercise the judgment
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<PAGE>
permitted to be exercised under this Section 7(b) and Section 9(b)).
8. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each of you, the directors, officers, employees and
agents of each of you and each person who controls each of you within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which you, they or any of
you or them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
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Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by any of you specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each of you agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration Statement
and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company
to you, but only with reference to written information relating to such of you
furnished to the Company by such of you specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which you may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page, and under the heading "Plan of Distribution", of the Prospectus Supplement
constitute the only information furnished in writing by any of you for inclusion
in the documents referred to in the foregoing indemnity, and you confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to
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be made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the failure so to
notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
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satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of one such separate counsel for all indemnified parties if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and each of you agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
you may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by each of you from the offering of the
Notes from which such Losses arise; provided, however, that in no case shall any
-------- -------
of you be responsible for any amount in excess of the commissions received by
such of you in connection with the sale of Notes from which such Losses arise
(or, in the case of Notes sold pursuant to a Terms Agreement, the aggregate
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commissions that would have been received by such of you if such commissions had
been payable). If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and each of you shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of each of you in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) of the Notes from which such Losses arise, and benefits received by
each of you shall be deemed to be equal to the total commissions received by
such of you in connection with the sale of Notes from which such Losses arise
(or, in the case of Notes sold pursuant to a Terms Agreement, the aggregate
commissions that would have been received by such of you if such commissions had
been payable). Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or any of you. The Company and each of you agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls any of you within the meaning of the
Act or the Exchange Act and each director, officer, employee and agent of any of
you shall have the same rights to contribution as you and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Termination. (a) This Agreement will continue in effect until
-----------
terminated as provided in this Section 9. This Agreement may be terminated
either by the Company as to any Agent or by any of you insofar as this Agreement
relates to any Agent, by giving written notice of such termination to such Agent
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the fourth paragraph of Section 2(a), Section 4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior to
delivery of any payment for
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any Note to be purchased thereunder, if prior to such time (i) there shall have
occurred, subsequent to the agreement to purchase such Note, any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which is, in the
judgment of the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of such Note, (ii) there
shall have been, subsequent to the agreement to purchase such Note, any decrease
in the rating of any of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change, (iii) trading in any
securities of the Company shall have been suspended by the Commission or a
national securities exchange, or minimum or maximum prices for trading in
securities generally shall have been fixed, or maximum ranges for prices for
securities shall have been required, by either of said exchanges or by order of
the Commission or any other governmental authority (iv) a banking moratorium
shall have been declared by either Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the judgment of the Purchaser, impracticable or inadvisable to proceed
with the offering or delivery of such Notes as contemplated by the Prospectus
(exclusive of any supplement thereto which is created after the time of
execution of such Terms Agreement).
10. Survival of Certain Provisions. The respective agreements,
------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the directors, officers, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(h) and 8
hereof shall survive the termination or cancellation of this Agreement. The
provisions of this Agreement (including without limitation Section 7 hereof)
applicable to any purchase of a Note for which an agreement to purchase exists
prior to the termination hereof shall survive any termination of this Agreement.
If at the time of termination of this Agreement any Purchaser shall own any
Notes with the intention of selling them, the provisions of Section 4 shall
remain in effect until such Notes are sold by the Purchaser.
11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to any of you, will be mailed, delivered
or telegraphed and confirmed to such of you, at the address specified in
Schedule I hereto; or,
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if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at the office of Energen Corporation, 2101 Sixth Avenue North, Birmingham,
Alabama 35203, attention of Treasurer.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto, their respective successors, the directors,
officers, employees, agents and controlling persons referred to in Section 8
hereof and, to the extent provided in Section 7, any person who has agreed to
purchase Notes, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be simultaneously executed in
------------
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall together constitute one and the same instrument.
-26-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you.
Very truly yours,
Energen Corporation
By:
_____________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
[Agent's Name]
By:
__________________________
-27-
<PAGE>
SCHEDULE I
Commissions:
- -----------
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on an agency
basis by such Agent:
Maturity Commission Rate
-------- ---------------
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 8 years .600%
8 years to less than 9 years .600%
9 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to less than 30 years .750%
30 years and beyond *
Unless otherwise specified in the applicable Terms Agreement, the
discount or commission payable to a Purchaser shall be determined on the basis
of the commission schedule set forth above.
Address for Notice to you:
- -------------------------
Notices to [Agent's Name] shall be directed to it at [Agent's
Address].
________________________
* To be negotiated between the applicable Agent and the Company.
-28-
<PAGE>
EXHIBIT A
ENERGEN CORPORATION
Medium-Term Note Administrative Procedures
------------------------------------------
__________, 1996
The Medium-Term Notes, Due Nine Months or More from Date of Issue (the
"Notes") of Energen Corporation (the "Company") are to be offered on a
continuing basis. [Agent's Name(s)], as agents (each an "Agent"), have agreed
to solicit purchases of Notes issued in fully registered form. The Agents will
not be obligated to purchase Notes for their own account. The Notes are being
sold pursuant to a Selling Agency Agreement between the Company and the agents
named therein (including the Agents) dated the date hereof (the "Agency
Agreement"). The Notes will rank equally with all other unsecured and
unsubordinated debt of the Company and have been registered with the Securities
and Exchange Commission (the "Commission"). The Notes will be issued under an
Indenture dated as of ___________, 1996 (the "Indenture"), between the Company
and The Bank of New York, as trustee (the "Trustee"). The Trustee will act as
the paying agent (the "Paying Agent") for the payment of principal of and
premium, if any, and interest on the Notes and will perform, as the Paying
Agent, unless otherwise specified, the other duties specified herein.
The Agency Agreement provides that Notes may also be purchased by an
Agent acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to Cede & Co. ("Cede"), as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Only Notes denominated and
payable in U.S. dollars may be issued as Book-Entry Notes. An owner of a Book-
Entry Note will not be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below.
<PAGE>
Administrative and record-keeping responsibilities will be handled for the
Company by its Treasurer. The Company will advise the Agents and the Trustee in
writing of those persons handling administrative responsibilities with whom the
Agents and the Trustee are to communicate regarding orders to purchase Notes and
the details of their delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indenture and the
Notes shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero, are
referred to herein as "Fixed Rate Notes". Notes for which interest is
calculated on the basis of a floating interest rate are referred to herein as
"Floating Rate Notes". To the extent the procedures set forth below conflict
with the provisions of the Notes, the Indenture, DTC's operating requirements or
the Agency Agreement, the relevant provisions of the Notes, the Indenture, DTC's
operating requirements and the Agency Agreement shall control.
PART I
Administrative Procedures for
-----------------------------
Book-Entry Notes
----------------
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Trustee will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and Trustee to DTC dated as of the date hereof and a Medium-
Term Note Certificate Agreement between Trustee and DTC, dated as of
____________, and its obligations as a participant in DTC, including DTC's Same-
Day Funds Settlement system ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
- -------- below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
$___,000,000 principal amount of all such Book-Entry Notes
that have the same original issue date, original issue
discount provisions, if any, Interest Payment Dates, Regular
Record Dates, Interest Payment Period, redemption, repayment
and extension provisions, if any, Maturity Date, and, in the
case of Fixed Rate Notes, interest rate,
-2-
<PAGE>
or, in the case of Floating Rate Notes, initial interest
rate, Base Rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread Multiplier, if any,
minimum interest rate, if any, and maximum interest rate, if
any (collectively, the "Terms"). Each Global Security will
be dated and issued as of the date of its authentication by
the Trustee. Each Global Security will bear an original
issue date, which will be (i) with respect to an original
Global Security (or any portion thereof), the original issue
date specified in such Global Security and (ii) following a
consolidation of Global Securities, with respect to the
Global Security resulting from such consolidation, the most
recent Interest Payment Date to which interest has been paid
or duly provided for on the predecessor Global Securities,
regardless of the date of authentication of such resulting
Global Security. No Global Security will represent any
Certificated Note.
Identification The Company has arranged with the CUSIP Service Bureau of
- -------------- Standard & Poor's Corporation (the "CUSIP Service Bureau")
Numbers: for the reservation of a series of CUSIP numbers, which
- ------- series consists of approximately ____ CUSIP numbers and
relates to Global Securities representing Book-Entry Notes
and book-entry medium-term notes issued by the Company with
other series designations. The Company has obtained from the
CUSIP Service Bureau a written list of such reserved CUSIP
numbers and has delivered such list to the Trustee and DTC.
The Company will assign CUSIP numbers to Global Securities
as described below under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global Securities.
At any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Securities, and, if it
deems necessary , the Company will reserve additional CUSIP
numbers for assignment to Global Securities. Upon obtaining
such additional CUSIP numbers, the Company shall deliver a
list of such additional CUSIP numbers to Trustee and DTC.
Registration: Global Securities will be issued only in fully registered
- ------------ form without coupons. Each
-3-
<PAGE>
Global Security will be registered in the name of CEDE &
CO., as nominee for DTC, on the securities register for the
Notes maintained under the Indenture. The beneficial owner
of a Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one or more
participants in DTC (with respect to such Book-Entry Note,
the "Participants") to act as agent or agents for such owner
in connection with the book-entry system maintained by DTC,
and DTC will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance
with respect to such beneficial owner in such Book-Entry
Note in the account of such Participants. The ownership
interest of such beneficial owner (or such participant) in
such Book-Entry Note will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
- --------- entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees
of such Note.
Exchanges: Upon receipt of instructions from Company, Trustee may
- --------- deliver to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation (a copy of which shall be
attached to the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more outstanding
Global Securities that represent (A) Fixed Rate Book-Entry
Notes having the same Terms and for which interest has been
paid to the same date or (B) Floating Rate Book-Entry Notes
having the same Terms and for which interest has been paid
to the same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and at least
thirty days before the next Interest Payment Date for such
Book-Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Company, to be
assigned to such replacement Global Security. Upon receipt
of such a notice, DTC will send to its participants
-4-
<PAGE>
(including Trustee) a written reorganization notice to the
effect that such exchange will occur on such date. Prior to
the specified exchange date, Trustee will deliver to the
CUSIP Service Bureau a written notice setting forth such
exchange date and such new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On the
specified exchange date, Trustee will exchange such Global
Securities for a single Global Security bearing the new
CUSIP number and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service Bureau
procedures, be canceled and not reassigned until the Book-
Entry Notes represented by such exchanged Global Securities
have matured or been redeemed. Notwithstanding the
foregoing, if the Global Securities to be exchanged exceed
$150,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent each
$150,000,000 of principal amount of the exchanged Global
Securities and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine months or
- ---------- more after the Original Issue Date for such Note. A
Floating Rate Book-Entry Note will mature only on an
Interest Payment Date for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
- ------------- $1,000 or any amount in excess thereof that is an integral
multiple of $1,000. Global Securities will be denominated
in principal amounts not in excess of $150,000,000. If one
or more Book-Entry Notes having an aggregate principal
amount in excess of $150,000,000 would, but for the
preceding sentence, be represented by a single Global
Security, then one Global Security will be authenticated and
issued to represent each $150,000,000 principal amount of
such Book-Entry Note or Notes and an additional Global
Security will be authenticated and issued to represent any
remaining principal amount of such Book-Entry Note or Notes.
In such a case, each of the Global Securities representing
such Book-
-5-
<PAGE>
Entry Note or Notes shall be assigned the same CUSIP number.
Interest: General. Interest, if any, on each Book-Entry Note will
- -------- -------
accrue from the original issue date for the first interest
period or the last date to which interest has been paid, if
any, for each subsequent interest period, on the Global
Security representing such Book-Entry Note, and will be
calculated and paid in the manner described in such Book-
Entry Note and in the Prospectus (as defined in the Agency
Agreement), as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each payment
of interest on a Book-Entry Note will include interest
accrued to but excluding the Interest Payment Date (provided
that, in the case of Floating Rate Book-Entry Notes which
reset daily or weekly, interest payments will include
accrued interest to but excluding the Regular Record Date
immediately preceding the Interest Payment Date) or to but
excluding Maturity (other than a Maturity of a Fixed Rate
Book-Entry Note occurring on the 31st day of a month, in
which case such payment of interest will include interest
accrued to but excluding the 30th day of such month).
Interest payable at the Maturity of a Book-Entry Note will
be payable to the Person to whom the principal of such Note
is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message
described under Settlement Procedure "C" below in order to
include the amount of any interest payable and certain other
information regarding the related Global Security in the
appropriate (daily or weekly) bond report published by
Standard & Poor's Corporation.
Regular Record Dates. The Regular Record Date with respect
--------------------
to any Interest Payment Date shall be the date fifteen
calendar days immediately preceding such Interest Payment
Date (whether or not a Business Day).
Interest Payment Dates on Fixed Rate Book-Entry Notes.
-----------------------------------------------------
Unless otherwise specified pursuant to Settlement Procedure
"A" below, interest payments on Fixed Rate Book-Entry Notes
will be made semiannually on ________ 1 and __________ 1 of
each year and at
<PAGE>
Maturity; provided, however, that if an Interest Payment
-------- -------
Date for a Fixed Rate Book-Entry Note is not a Business Day,
the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment
Date; provided further, that in the case of a Fixed Rate
----------------
Book-Entry Note issued between a Regular Record Date and an
Interest Payment Date, the first interest payment will be
made on the Interest Payment Date following the next
succeeding Regular Record Date.
Interest Payment Dates on Floating Rate Book-Entry Notes.
--------------------------------------------------------
Interest payments will be made on Floating Rate Book-Entry
Notes monthly, quarterly, semi-annually or annually. Unless
otherwise agreed upon, interest will be payable, in the case
of Floating Rate Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third Wednesday of
March, June, September and December of each year; with a
semi-annual Interest Payment Period on the third Wednesday
of the two months specified pursuant to Settlement Procedure
"A" below; and with an annual Interest Payment Period, on
the third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided, however, that if
-------- -------
an Interest Payment Date for a Floating Rate Book-Entry Note
would otherwise be a day that is not a Business Day with
respect to such Floating Rate Book-Entry Note, such Interest
Payment Date will be the next succeeding Business Day with
respect to such Floating Rate Book-Entry Note, except in the
case of a Floating Rate Book-Entry Note for which the Base
Rate is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will
be the immediately preceding Business Day; and provided
--------
further, that in the case of a Floating Rate Book-Entry Note
-------
issued between a Regular Record Date and an Interest Payment
Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Regular
Record Date.
Notice of Interest Payment and Regular Record Dates. On the
---------------------------------------------------
first Business Day of January, April, July and October of
each year, Trustee
-7-
<PAGE>
will deliver to the Company and DTC a written list of
Regular Record Dates and Interest Payment Dates that will
occur with respect to Book-Entry Notes during the six-month
period beginning on such first Business Day. Promptly after
each Interest Determination Date for Floating Rate Book-
Entry Notes, Trustee as Calculation Agent, will notify
Standard & Poor's Corporation of the interest rates
determined on such Interest Determination Date.
Calculation of Fixed Rate Book-Entry Notes. Interest on
- -------------- ---------------------------
Interest: Fixed Rate Book-Entry Notes (including interest for partial
- --------
periods) will be calculated on the basis of a 360-day year
of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates on Floating
------------------------------
Rate Book-Entry Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Book-Entry Notes,
except as otherwise set forth therein, will be calculated on
the basis of actual days elapsed and a year of 360 days,
except that in the case of a Floating Rate Book-Entry Note
for which the Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of days in the
year.
Payments of Payment of Interest Only. Promptly after
- ----------- ------------------------
Principal and each Regular Record Date, Paying Agent will
- ------------- deliver to the Company and DTC a written notice setting
Interest: forth, by CUSIP number, the amount of interest to be paid on
- -------- each Global Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest
Payment Date by reference to the appropriate (daily or
weekly) bond reports published by Standard & Poor's
Corporation. The Company will pay to Paying Agent, the
total amount of interest due on such Interest Payment Date
(other than at Maturity), and Paying Agent will pay such
amount to DTC, at the times and in the manner set forth
below under "Manner of Payment".
Payments at Maturity. On or about the first Business Day of
--------------------
each month, Paying Agent will deliver to the Company, DTC
and the Trustee a
-8-
<PAGE>
written list of principal and interest to be paid on each
Global Security maturing (on a Maturity or Redemption Date
or otherwise) in the following month. Company and DTC will
confirm the amounts of such principal and interest payments
with respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global
Security. On or before Maturity, the Company will pay to
Paying Agent, the principal amount of such Global Security,
together with interest due at such Maturity. Paying Agent
will pay such amount to DTC at the times and in the manner
set forth below under "Manner of Payment". If any Maturity
of a Global Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Maturity. Promptly after payment to DTC of the principal
and interest due at Maturity of such Global Security, the
Trustee will cancel such Global Security in accordance with
the Indenture and so advise the Company.
Manner of Payment. The total amount of any principal and
-----------------
interest due on Global Securities on any Interest Payment
Date or at Maturity shall be paid by the Company to Paying
Agent in immediately available funds for use by the Paying
Agent on such date. The Company will make such payment on
such Global Securities by instructing Paying Agent to
withdraw funds from an account maintained by the Company at
Paying Agent or by wire transfer to Paying Agent. The
Company will confirm any such instructions in writing to
Paying Agent. Prior to 10 A.M. (New York City time) on the
date of Maturity or as soon as possible thereafter, Paying
Agent will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously agreed to
with DTC) to an account at the Federal Reserve Bank of New
York previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal (together
with interest thereon) due on a Global Security on such
date. On each Interest Payment Date (other than at
Maturity), interest payments shall be made to DTC, in same
day funds in accordance with existing arrangements between
Paying
-9-
<PAGE>
Agent and DTC. On each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate use to
the respective Participants in whose names the Book-Entry
Notes represented by such Global Securities are recorded in
the book-entry system maintained by DTC. None of the
Company (as issuer or as paying agent), the Trustee or
Paying Agent shall have any direct responsibility or
liability for the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under
-----------------
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly
to the beneficial owner of such Note.
Procedures upon Company Notice to Trustee Regarding Exercise
- --------------- --------------------------------------------
Company's Exercise of Optional Reset. Not less than 45 or more
- ------------------ -----------------
of Optional Reset than 60 days before an Optional Reset Date as
- ----------------- set forth in a Book-Entry Note, the Company
or Optional will notify the Trustee whether it is
- ----------- exercising its option to reset the Interest Rate or Spread
Extension of or Spread Multiplier, as the case may be, for such Book-
- ------------ Entry Note, and if so, (i) the new Interest Rate or Spread
Maturity: or Spread Multiplier, as the case may be, for such Book-
- -------- Entry Note during the period from such Optional Reset Date
to the next Optional Reset Date as set forth in such Book-
Entry Note or, if there is no such next Optional Reset Date,
to the Stated Maturity of such Book-Entry Note (the
"Subsequent Interest Period"); and (ii) the provisions, if
any, for redemption of such Book-Entry Note during such
Subsequent Interest Period, including the date or dates on
which or the period or periods during which such redemption
may occur during such Subsequent Interest Period.
Company Notice to Trustee Regarding Exercise of Optional
--------------------------------------------------------
Extension of Maturity. If the Company elects to exercise an
---------------------
option, as set forth in a Book-Entry Note, to extend the
Stated Maturity of such Note, it will so notify the Trustee
no less than 45 or more than 60 days before the Stated
Maturity of such Book-Entry Note, and will further
-10-
<PAGE>
indicate (i) the new Stated Maturity; (ii) the Interest Rate
or Spread or Spread Multiplier, as the case may be, and
(iii) the provisions, if any, for redemption of such Book-
Entry Note during such extension period, including the date
or dates on which or the period or periods during which such
redemption may occur during such extension period.
Trustee Notice to DTC Regarding Company's Exercise of
-----------------------------------------------------
Optional Extension or Reset. Upon receipt of notice from
---------------------------
the Company regarding the Company's exercise of either an
optional extension of maturity or an optional reset, the
Trustee will hand-deliver a notice to DTC not less than 40
days before the Optional Reset Date (in which case a "Reset
Notice") or the Stated Maturity (in which case an "Extension
Notice"), as the case may be, which Reset Notice or
Extension Notice shall identify such Book-Entry Note by
CUSIP number and shall contain the information required by
the terms of the Book-Entry Note.
Trustee Notice to Company Regarding Option to be Repaid.
-------------------------------------------------------
If, after receipt of either a Reset Notice or an Extension
Notice, DTC exercises the option for repayment by tendering
the Global Security representing the Book-Entry Note to be
repaid as set forth in such Note, the Trustee shall give
notice to the Company not less than 22 days before the
Optional Reset Date or the old Stated Maturity, as the case
may be, of the principal amount of Book-Entry Notes to be
repaid on such Optional Reset Date or old Stated Maturity,
as the case may be.
Company Notice Regarding New Interest Rate or New Spread or
-----------------------------------------------------------
Spread Multiplier. If the Company elects to revoke the
-----------------
Interest Rate or Spread or Spread Multiplier and establish a
higher interest rate or Spread or Spread Multiplier for an
Optional Reset Period or extension period, as the case may
be, it shall, not less than 20 days before such Optional
Reset Date or old Stated Maturity, so notify the Trustee.
The Trustee will immediately thereafter notify DTC of the
new Interest Rate or Spread or Spread Multiplier applicable
to such Book-Entry Note.
-11-
<PAGE>
Trustee Notice to Company Regarding DTC Revocation of Option
------------------------------------------------------------
to be Repaid. If, after DTC has tendered any Book-Entry
------------
Notes for repayment pursuant to an Extension Notice or an
Optional Reset Notice, DTC then revokes such tender for
repayment, the Trustee shall give notice to the Company not
less than five days prior to the Stated Maturity or Optional
Reset Date, as the case may be, of such revocation and of
the principal amount of Book-Entry Notes for which tender
for repayment has been revoked.
Deposit of Repayment Price. On or before any old Stated
--------------------------
Maturity where the Maturity has been extended, and on or
before an Optional Reset Date, the Company shall deposit
with the Paying Agent an amount of money sufficient to pay
the principal amount, plus interest accrued to such old
Stated Maturity or Optional Reset Date, as the case may be,
for all the Book-Entry Notes or portions thereof which are
to be repaid on such old Stated Maturity or Optional Reset
Date, as the case may be. Such Paying Agent will use such
money to repay such Book-Entry Notes pursuant to the terms
set forth in such Notes.
Procedures upon Company Notice to Trustee Regarding Exercise
- --------------- --------------------------------------------
Company's of Optional Redemption. At least 45 days
- --------- ----------------------
Exercise of prior to the date on which it intends to redeem a Book-Entry
- ----------- Note, the Company will notify the Trustee that it is
Optional exercising such option with respect to such Book-Entry
- -------- Note on such date.
Redemption:
- ----------
Trustee Notice to DTC Regarding Company's Exercise of
-----------------------------------------------------
Optional Redemption. After receipt of notice that the
-------------------
Company is exercising its option to redeem a Book-Entry
Note, the Trustee will, at least 30 days before the
redemption date for such Book-Entry Note, hand deliver to
DTC a notice identifying such Book-Entry Note by CUSIP
number and informing DTC of the Company's exercise of such
option with respect to such Book-Entry Note.
Deposit of Redemption Price. On or before any redemption
---------------------------
date, the Company shall deposit with Paying Agent an amount
of money sufficient to pay the redemption price, plus
interest accrued to such redemption date, for
-12-
<PAGE>
all the Book-Entry Notes or portions thereof which are to be
repaid on such redemption date. Such Paying Agent will use
such money to repay such Book-Entry Notes pursuant to the
terms set forth in such Notes.
Payments of Trustee Notice to Company of Option to be
- ----------- -----------------------------------------
Principal and Repaid. Upon receipt of notice of exercise
- ------------- ------
Interest upon of the option for repayment and the Global Securities
- ------------- representing the Book-Entry Notes so to be repaid
Exercise of as set forth in such Notes, the Trustee shall (unless such
- ----------- notice was received pursuant to the Company's exercise
Optional Repayment of an optional reset or an optional extension of maturity,
- ------------------ in each of which cases the relevant procedures set
(Except Pursuant forth above are to be followed) give notice to the Company
- ---------------- not less than 20 days prior to each Optional Repayment
to Company's Date of such Optional Repayment Date and of the principal
- ------------ amount of Book-Entry Notes to be repaid on such
Exercise of Optional Repayment Date.
- -----------
Optional Reset
- --------------
or Optional
- -----------
Extension):
- ----------
Deposit of Repayment Price. On or prior to any Optional
--------------------------
Repayment Date, the Company shall deposit with such Paying
Agent an amount of money sufficient to pay the optional
repayment price, and accrued interest thereon to such date,
of all the Book-Entry Notes or portions thereof which are to
be repaid on such date. Such Paying Agent will use such
money to repay such Book-Entry Notes pursuant to the terms
set forth in such Notes.
Procedure for Rate The Company and the Agents will discuss from time to
- ------------------ time the aggregate principal amount of, the issuance price
Setting and of, and the interest rates to be borne by, Book-Entry Notes
- ----------- that may be sold as a result of the solicitation of orders
Posting: by the Agents. If the Company decides to set prices of,
- ------- and rates borne by, any Book-Entry Notes in respect of
which the Agents are to solicit orders (the setting of such
prices and rates to be referred to herein as "posting") or
if the Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of the
prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company,each Agent will
- -------------- advise the Company promptly by telephone of all orders
Rejection of to purchase Book-Entry Notes received by such Agent, other
- ------------
Orders:
- ------
-13-
<PAGE>
than those rejected by it in whole or in part in the
reasonable exercise of its discretion. Unless otherwise
agreed by the Company and the Agents, the Company has the
right to accept orders to purchase Book-Entry Notes and may
reject any such orders in whole or in part.
Preparation of If any order to purchase a Book-Entry Note is accepted by
- -------------- or on behalf of the Company, the Company will prepare a
Pricing pricing supplement (a "Pricing Supplement") reflecting the
- ------- applicable interest rates and other terms of such Book-
Supplement: Entry Note and will arrange to have the appropriate
- ---------- number of copies thereof filed with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Act and will supply at least ten copies thereof
(and additional copies if requested) to the Agent which
presented the order (the "Presenting Agent"). The Presenting
Agent will cause a Prospectus and Pricing Supplement to be
delivered to the purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in its sole discretion,
- ------------- to instruct the Agents to suspend at any time, for
Solicitation; any period of time or permanently, the solicitation of
- ------------- orders to purchase Book-Entry Notes. Upon receipt of such
Amendment or instructions, the Agents will forthwith suspend
- ------------ solicitation until such time as the Company has advised
Supplement: them that such solicitation may be resumed. In the event
- ---------- that at the time the Company suspends solicitation of
purchases there shall be any orders outstanding for
settlement, the Company will promptly advise the Agents and
the Trustee whether such orders may be settled and whether
copies of the Prospectus as in effect at the time of the
suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the
settlement of such orders. The Company will have the sole
responsibility for such decision and for any
-14-
<PAGE>
arrangements that may be made in the event that the Company
determines that such orders may not be settled or that
copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Agency Agreement)
or the Prospectus, it will promptly advise the Agents and
furnish the Agents with the proposed amendment or supplement
and with such certificates and opinions as are required, all
to the extent required by and in accordance with the terms
of the Agency Agreement. Subject to the provisions of the
Agency Agreement, the Company may file with the Commission
any such supplement to the Prospectus relating to the Notes.
The Company will provide the Agents, and the Trustee with
copies of any such supplement, and confirm to the Agents
that such supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424(b).
Procedures For When the Company has determined to change the interest
- -------------- rates of Book-Entry Notes being offered, it will promptly
Rate Changes: advise the Agents and the Agents will forthwith suspend
- ------------ solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the Agents of
the new interest rates, the Agents may resume solicitation
of orders. Until such time only "indications of interest"
may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement relating
- ----------- to a Book-Entry Note must accompany or precede the earliest
Prospectus: of any written offer of such Book-Entry Note, confirmation
- ---------- of the purchase of such Book-Entry Note and payment for
such Book-Entry Note by its purchaser. If notice of a change
in the terms of the Book-Entry Notes is received by the
Agents between the time an order for a Book-Entry Note is
placed and the time written confirmation thereof is sent by
the Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the Presenting
Agent will deliver a
-15-
<PAGE>
Prospectus and Pricing Supplement as herein described with
respect to each Book-Entry Note sold by it. The Company
will make such delivery if such Book-Entry Note is sold
directly by the Company to a purchaser (other than an
Agent).
Confirmation: For each order to purchase a Book-Entry Note solicited by
------------ any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the details set
forth above and delivery and payment instructions
Settlement: The receipt by the Company of immediately available funds in
- ---------- payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Book-Entry
Note shall constitute "settlement" with respect to such
Book-Entry Note. All orders accepted by the Company will be
settled on the third Business Day following the date of sale
of such Book-Entry Note pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day which shall be
no earlier than the next Business Day following the date of
sale.
Settlement Settlement Procedures with regard to each Book-Entry Note
- ---------- sold by the Company through any Agent, as agent, shall be
Procedures: as follows:
- ----------
A. The Presenting Agent will advise the Company by
telephone of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the
interest rate or, in the case of a Floating Rate
Book-Entry Note, the Base Rate, initial interest
rate (if known at such time), Index Maturity,
Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate
(if any).
-16-
<PAGE>
4. Interest Payment Dates and the Interest Payment
Period.
5. Redemption, repayment and extension provisions, if
any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined as
provided in Section 2 of the Agency Agreement.
9. Whether such Book-Entry Note is issued at an
original issue discount and, if so, the total
amount of OID, the yield to maturity and the
initial accrual period OID.
B. The Company will assign a CUSIP number to the Global
Security representing such Book-Entry Note and then
advise Trustee by telephone (confirmed in writing at
any time on the same date) or electronic transmission
of the information set forth in Settlement Procedure
"A" above, such CUSIP number and the name of the
Presenting Agent. The Company will also notify the
Presenting Agent by telephone of such CUSIP number as
soon as practicable. Each such communication by the
Company shall constitute a representation and warranty
by the Company to the Trustee and the Presenting Agent
that (i) such Note is then, and at the time of issuance
and sale thereof will be, duly authorized for issuance
and sale by the Company, and (ii) such Note, and the
Global Security representing such Note, will conform
with the terms of the Indenture for such Note.
C. Trustee will enter a pending deposit message through
DTC's Participant Terminal System providing the
following settlement information to DTC (which shall
route such information to Standard & Poor's
Corporation), and the Presenting Agent:
-17-
<PAGE>
1. The information set forth in Settlement Procedure
"A".
2. Identification as a Fixed Rate Book-Entry Note or
a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Book-Entry
Note, number of days by which such date succeeds
the related Regular Record Date and amount of
interest payable on such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security representing
such Book-Entry Note.
6. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at such
time).
D. To the extent the Company has not already done so, the
Company will deliver to the Trustee a Global Security
in a form that has been approved by the Company, the
Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp
the appropriate legend, as instructed by DTC, if not
already set forth thereon, and authenticate the Global
Security representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to Trustee's
participant account at DTC.
G. Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i)
debit such Book-Entry Note to Trustee's participant
account and credit such Book-Entry Note to the
Presenting Agent's participant account and (ii) debit
the Presenting Agent's settlement account and credit
Trustee's settlement account for an amount equal to the
price of such Book-Entry Note less the Presenting
Agent's commission. The entry of such a deliver order
shall constitute a representation and warranty by
Trustee to DTC that (i) the Global Security
representing such
-18-
<PAGE>
Book-Entry Note has been issued and authenticated and
(ii) Trustee is holding such Global Security pursuant
to the Medium-Term Note Certificate Agreement between
Trustee and DTC.
H. The Presenting Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Book-Entry Note to the Presenting
Agent's participant account and credit such Book-Entry
Note to the participant accounts of the Participants
with respect to such Book-Entry Note and (ii) to debit
the settlement accounts of such Participants and credit
the settlement account of the Presenting Agent for an
amount equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
J. Trustee will, upon receipt of funds from the Presenting
Agent in accordance with Settlement Procedure "G", wire
transfer to the account of the Company maintained at
_______________ Birmingham, Alabama (or if directed in
writing by the Company, credit to an account of the
Company maintained at Trustee) funds available for
immediate use in the amount transferred to Trustee in
accordance with Settlement Procedure "G".
K. The Presenting Agent will confirm the purchase of such
Book-Entry Note to the purchaser either by transmitting
to the Participants with respect to such Book-Entry
Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
Settlement For orders of Book-Entry Notes solicited by any Agent
- ---------- and accepted by the Company for settlement on the
Procedures first Business Day after the sale date, Settlement
- ---------- procedures "A" through "K" set forth above shall be
Timetable:
- ---------
-19-
<PAGE>
completed as soon as possible but not later than the
respective times (New York City time) set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
</TABLE>
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C", shall
be completed as soon as practicable but no later than 11:00
A.M. and 12:00 Noon on the first Business Day after the sale
date and no later than 2:00 P.M. on the Business Day before
the settlement date, respectively. If the initial interest
rate for a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M., respectively, on the
Business Day before the settlement date. Settlement
Procedure "I" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, Company will instruct Trustee to deliver to DTC,
through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 12:00 noon on the
Business Day immediately preceding the scheduled settlement
date and the Trustee will enter such message no later than
by 2:00 P.M. on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If Trustee fails to enter an SDFS deliver order with respect
- ----------------- to a Book-Entry Note
-20-
<PAGE>
pursuant to Settlement Procedure "G", Trustee may deliver to
DTC, through DTC's Participant Terminal System, as soon as
practicable, a withdrawal message instructing DTC to debit
such Book-Entry Note to Trustee's participant account
provided that Trustee's participant account contains a
principal amount of the Global Security representing such
Book-Entry Note that is at least equal to the principal
amount to be debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes represented by a
Global Security, the Trustee will mark such Global Security
"canceled" in accordance with the Indenture and so advise
the Company and Trustee will make appropriate entries in its
records and return the canceled Global Securities to
Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau procedures,
be canceled and not reassigned until the Book-Entry Notes
represented by such Global Security have matured or been
redeemed. If a withdrawal message is processed with respect
to one or more, but not all, of the Book-Entry Notes
represented by a Global Security, Trustee will exchange such
Book-Entry Note for two Global Securities, one of which
shall represent such Book-Entry Notes and shall be canceled
immediately after issuance and the other of which shall
represent the other Book-Entry Notes previously represented
by the surrendered Global Security and shall bear the CUSIP
number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Presenting
Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "H" and "G", respectively.
Thereafter, Trustee will deliver the withdrawal message and
take the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than a default by the Presenting Agent in the
performance of its obligations hereunder and under the
-21-
<PAGE>
Agency Agreement, then the Company will reimburse the
Presenting Agent or Trustee as applicable, on an equitable
basis for the loss of the use of the funds during the period
when they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, Trustee will provide,
in accordance with Settlement Procedure "E", for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
Trustee Not to Nothing herein shall be deemed to require the Trustee
- -------------- to risk or expend its own funds in connection with any
Risk Funds: payment to the Company, DTC, the Agents or the purchaser,
- ---------- it being understood by all parties that payments made by
the Trustee to the Company, DTC, the Agents or the purchaser
shall be made only to the extent that funds are provided to
the Trustee for such purpose.
Payment of Each Agent shall forward to the Company, on a monthly basis,
- ---------- a statement of the out-of-pocket expenses incurred by such
Expenses: Agent during that month that are reimbursable to it pursuant
- -------- to the terms of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly basis.
Advertising The Company will determine with the Agents the amount of
- ----------- advertising that may be appropriate in soliciting offers to
Costs: purchase the Book-Entry Notes. Advertising expenses will be
- ----- paid by the Company.
Periodic Periodically, Trustee will send to the Company a statement
- -------- setting forth the principal amount of Book-Entry Notes
Statements from Outstanding as of that date and setting forth a brief
- --------------- description of any sales of Book-Entry Notes which the
Trustee: Company has advised Trustee but which have not yet been
- ------- settled.
-22-
<PAGE>
PART II
Administrative Procedures for Certificated Notes
------------------------------------------------
Trustee will serve as registrar and transfer agent in connection with
the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of the
- -------- date of its authentication by the Trustee. Each Certificated
Note will bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note (or any
portion thereof), its original issuance date (which will be
the settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in lieu
of a destroyed, lost or stolen Certificated Note, the
Original Issue Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully registered
- ------------ form without coupons. A Certificated Note may be presented
Transfers and for transfer or exchange at the principal corporate trust
- ------------- office of Trustee in Jacksonville, Florida. Certificated
for Exchanges: Notes will be exchangeable for other Certificated Notes
- ------------- having identical terms but different authorized
denominations without service charge. Certificated Notes
will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine months or
- ---------- more after the settlement date for such Note. A Floating
Rate Certificated Note will mature only on an Interest
Payment Date for such Note. Any Note denominated in Japanese
yen will mature on a date not less than one year from the
Original Issue Date (as defined below) for such Note. Any
Note denominated in Pounds Sterling will mature on a date
not less than one year, nor more than five years, after its
Original Issue Date.
Denominations: The denomination of any Certificated Note denominated in
- ------------- U.S. dollars will be a minimum of $1,000 or any amount in
excess thereof that is an integral multiple of $1,000. The
authorized denominations of Certificated Notes denominated
in any other currency will
<PAGE>
be specified pursuant to "Settlement Procedures" below.
Interest: General. Interest, if any, on each Certificated Note will
- -------- -------
accrue from the original issue date for the first interest
period or the last date to which interest has been paid, if
any, for each subsequent interest period, and will be
calculated and paid in the manner described in such Note and
in the Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each
payment of interest on a Certificated Note will include
interest accrued to but excluding the Interest Payment Date
(provided that, in the case of Certificated Notes which
reset daily or weekly, interest payments will include
accrued interest to but excluding the Regular Record Date
immediately preceding the Interest Payment Date) or to but
excluding Maturity (other than a Maturity of a Fixed Rate
Certificated Note occurring on the 31st day of a month, in
which case such payment of interest will include interest
accrued to but excluding the 30th day of such month).
Regular Record Dates. The Regular Record Dates with respect
--------------------
to any Interest Payment Date shall be the date fifteen
calendar days immediately preceding such Interest Payment
Date (whether or not a Business Day).
Fixed Rate Certificated Notes. Unless otherwise specified
-----------------------------
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes will be made
semi-annually on _________ 1 and ___________ 1 of each year
and at Maturity; provided, however, that if any Interest
-------- -------
Payment Date for a Fixed Rate Certificated Note is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Interest Payment Date; provided further, that in the case of
----------------
a Fixed Rate Certificated Note issued between a Regular
Record Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following
the next succeeding Regular Record Date.
-2-
<PAGE>
Floating Rate Certificated Notes. Interest payments will be
--------------------------------
made on Floating Rate Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be payable, in the
case of Floating Rate Certificated Notes with a monthly
Interest Payment Period, on the third Wednesday of each
month; with a quarterly interest Payment Period, on the
third Wednesday of March, June, September and December of
each year; with a semi-annual Interest Payment Period, on
the third Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and with an annual Interest
Payment Period, on the third Wednesday of the month
specified pursuant to Settlement Procedure "A" below;
provided, however, that if an Interest Payment Date for a
-------- -------
Floating Rate Certificated Note would otherwise be a day
that is not a Business Day with respect to such Floating
Rate Certificated Note, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated Note, except in the case of a
Floating Rate Certificated Note for which the Base Rate is
LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided further,
----------------
that in the case of a Floating Rate Certificated Note issued
between a Regular Record Date and an interest Payment Date,
the first interest payment will be made on the Interest
Payment Date following the next succeeding Regular Record
Date.
Calculation of Fixed Rate Certificated Note. Interest on
- -------------- ----------------------------
Interest: Fixed Rate Certificated Notes (including interest for
- -------- partial periods) will be calculated on the basis of a 360-
day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates on
--------------------------------
Floating Rate Certificated Notes will be determined as set
forth in the form of Notes. Interest on Floating Rate
Certificated Notes, except as otherwise set forth therein,
will be calculated on the basis of actual days elapsed and a
year of 360 days, except that in the case of a Floating Rate
Certificated Note for which the Base Rate is Treasury Rate,
interest will be
-3-
<PAGE>
calculated on the basis of the actual number of days in the
year.
Payments of Interest, if any, on each Certificated Note will be
- ----------- calculated and paid in the manner described in such Note and
principal and in the Prospectus, as supplemented by the applicable Pricing
- ------------- Supplement. Unless otherwise provided in the Indenture or
Interest: the Certificated Note, the first payment of interest on any
- -------- Certificated Note originally issued between a Record Date
and an Interest Payment Date will be made on the next
succeeding Interest Payment Date. Interest payable at the
Maturity of a Certificated Note will be payable to the
Person to whom the principal of such Note is payable. Unless
other arrangements are made, all interest payments
(excluding interest payments made on the Maturity Date) will
be made by check mailed to the person entitled thereto as
provided above; provided, however, that the holder of
-------- -------
$10,000,000 (or the equivalent thereof in other currencies)
or more of Certificated Notes with similar tenor and terms
will be entitled to receive payment by wire transfer in U.S.
dollars.
Within 10 days following each Record Date, the Trustee will
inform the Company of the total amount of the interest
payments to be made by the Company on the next succeeding
Interest Payment Date. The Trustee will provide monthly to
the Company a list of the principal and interest to be paid
on Certificated Notes maturing in the next succeeding month.
Trustee will be responsible for withholding taxes on interest
paid on Certificated Notes as required by applicable law.
If the Maturity of a Certificated Note is not a Business
Day, the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Maturity.
-4-
<PAGE>
Procedures upon Company Notice to Trustee Regarding Exercise
- --------------- --------------------------------------------
Company's Exercise of Optional Reset. Not less than 45 or more more than 60
- ------------------ -----------------
of Optional Reset days before an Optional Reset Date as set forth in a
- ----------------- Certificated Note,the Company will notify the Trustee
or Optional whether it is exercising its option to reset the Interest
- ----------- Rate or Spread or Spread Multiplier, as the case may be, for
Extension of such certificated Note, and if so, (i) the new Interest Rate
- ------------ or Spread or Spread Multiplier, as the case may be, for such
Maturity: Certificated Note during the period from such Optional Reset
- -------- Date to the next Optional Reset Date as set forth in such
Certificated Note or, if there is no such next Optional
Reset Date, to the Maturity Date of such Certificated Note
(the "Subsequent Interest Period"); and (ii) the provisions,
if any, for redemption of such Certificated Note during such
Subsequent Interest Period, including the date or dates on
which or the period or periods during which such redemption
may occur during such Subsequent Interest Period.
Company Notice to Trustee Regarding Exercise of Optional
--------------------------------------------------------
Extension of Maturity. If the Company elects to exercise an
---------------------
option, as set forth in a Certificated Note, to extend the
Maturity Date of such Note, it will so notify the Trustee no
less than 45 or more than 60 days before the Maturity Date
of such Certificated Note, and will further indicate (i) the
new Maturity Date; (ii) the Interest Rate or Spread or
Spread Multiplier, as the case may be, and (iii) the
provisions, if any, for redemption of such Certificated Note
during such extension period, including the date or dates on
which or the period or periods during which such redemption
may occur during such extension period.
Trustee Notice to Holders Regarding Company's Exercise of
---------------------------------------------------------
Optional Extension or Reset. Upon receipt of notice from
---------------------------
the Company regarding the Company's exercise of either an
optional extension of maturity or an optional reset, the
Trustee will mail a notice, first class, postage prepaid, to
the Holder not less than 40 days before the Optional Reset
Date (in which case a "Reset Notice") or the Maturity Date
(in which case an "Extension Notice"), as the case may be,
which Reset Notice or Extension Notice shall contain the
-5-
<PAGE>
information required by the terms of the Certificated Note.
Trustee Notice to Company Regarding Option to be Repaid.
-------------------------------------------------------
If, after receipt of either a Reset Notice or an Extension
Notice, any Holder of a Certificated Note exercises the
option for repayment by tendering the Certificated Note to
be repaid as set forth in the Certificated Note, the Trustee
shall give notice to the Company not less than 22 days
before the Optional Reset Date or the old Maturity Date, as
the case may be, of the principal amount of Certificated
Notes to be repaid on such Optional Reset Date or old
Maturity Date, as the case may be.
Company Notice Regarding New Interest Rate or New Spread or
-----------------------------------------------------------
Spread Multiplier. If the Company elects to revoke the
-----------------
Interest Rate or Spread or Spread Multiplier and establish a
higher interest rate or Spread or Spread Multiplier for an
Optional Reset Period or extension period, as the case may
be, it shall, not less than 20 days before such Optional
Reset Date or old Maturity Date, so notify the Trustee. The
Trustee will immediately thereafter notify the Holder of
such Certificated Note, by first class mail, postage prepaid
of the new Interest Rate or Spread or Spread Multiplier
applicable to such Certificated Note.
Trustee Notice to Company Regarding Holders Revocation of
---------------------------------------------------------
Option to be Repaid. If, after the Holder has tendered any
-------------------
Certificated Notes for repayment pursuant to an Extension
Notice or an Optional Reset Notice, such Holder then revokes
such tender for repayment, the Trustee shall give notice to
the Company not less than five days prior to the Maturity
Date or Optional Reset Date, as the case may be, of such
revocation and of the principal amount of Certificated Notes
for which tender for repayment has been revoked.
Deposit of Repayment Price. On or before any old Maturity
--------------------------
Date where the Maturity has been extended, and on or before
an Optional Reset Date, the Company shall deposit with the
Trustee an amount of money sufficient to pay the principal
amount, plus interest accrued to such old Maturity Date or
Optional Reset
-6-
<PAGE>
Date, as the case may be, for all the Certificated Notes or
portions thereof which are to be repaid on such old Maturity
Date or Optional Reset Date, as the case may be. Such
Trustee will use such money to repay such Certificated Notes
pursuant to the terms set forth in such Notes.
Procedures upon Company Notice to Trustee Regarding Exercise
- --------------- --------------------------------------------
Company's of Optional Redemption. At least 45 days
- --------- ----------------------
Exercise of prior to the date on which it intends to redeem a
- ----------- Certificated Note, the Company will notify the Trustee that
Optional it is exercising such option with respect to such
- -------- Certificated Note on such date.
Redemption:
- ---------- Trustee Notice to Holders Regarding Company's Exercise of
---------------------------------------------------------
Optional Redemption. After receipt of notice that the
-------------------
Company is exercising its option to redeem a Certificated
Note, the Trustee will, at least 30 days before the
redemption date for such Certificated Note, mail a notice,
first class, postage prepaid, to the Holder of such
Certificated Note informing such Holder of the Company's
exercise of such option with respect to such Certificated
Note.
Deposit of Redemption Price. On or before any redemption
---------------------------
date, the Company shall deposit with such Trustee an amount
of money sufficient to pay the redemption price, plus
interest accrued to such redemption date, for all the
Certificated Notes or portions thereof and which are to be
repaid on such redemption date. Such Trustee will use such
money to repay such Certificated Notes pursuant to the terms
set forth in such Notes.
Payments of Trustee Notice to Company of Option to be Repaid. Upon
- ----------- ------------------------------------------------
Principal and receipt of notice of exercise of the option for repayment
- ------------- and the Global Securities representing the Certificated
Interest Upon Notes so to be repaid as set forth in such Notes, the
- ------------- Trustee shall (unless such notice was received pursuant to
Exercise of the Company's exercise of an optional reset or an optional
- ----------- extension of maturity, in each of which cases the relevant
Optional Repayment procedures set forth above are to be followed) give notice
- ------------------ to the Company not less than 20 days prior to each Optional
(Except Pursuant Repayment Date of such Optional Repayment Date and of the
- ---------------- principal amount of
to Company's
- ------------
Exercise of
- -----------
Optional Reset
- --------------
or Optional
- -----------
Extension):
- ----------
-7-
<PAGE>
Certificated Notes to be repaid on such Optional Repayment
Date.
Deposit of Repayment Price. On or prior to any Optional
--------------------------
Repayment Date, the Company shall deposit with such Trustee
an amount of money sufficient to pay the optional repayment
price, and accrued interest thereon to such date, of all the
Certificated Notes or portions thereof which are to be
repaid on such date. Such Trustee will use such money to
repay such Certificated Notes pursuant to the terms set
forth in such Notes.
Procedure for Rate The Company and the Agents will discuss from
- ------------------ time to time the aggregate principal amount of, the issuance
Setting and price of, and the interest rates to be borne by, Notes that
- ----------- may be sold as a result of the solicitation of orders by the
Posting: Agents. If the Company decides to set prices of, and rates
- ------- borne by, any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates to be
referred to herein as "posting") or if the Company decides
to change prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates to be
posted.
Acceptance and Unless otherwise instructed by the Company, each Agent will
- -------------- advise the Company promptly by telephone of all orders to
Rejection of purchase Certificated Notes received by such Agent, other
- ------------ than those rejected by it in whole or in part in the
Orders: reasonable exercise of its discretion. Unless otherwise
- ------ agreed by the Company and the Agents, the Company has the
sole right to accept orders to purchase Certificated Notes
and may reject any such orders in whole or in part. Before
accepting any order to purchase a Certificated Note to be
settled in less than three Business Days, the Company shall
verify that the Trustee will have adequate time to prepare
and authenticate such Note.
Preparation of If any order to purchase a Certificated Note is accepted by
- -------------- or on behalf of the Company, the Company will prepare a
Pricing pricing supplement (a "Pricing Supplement") reflecting the
- ------- interest rates and other terms of such Certified Note and
Supplement: will arrange to have the applicable number of copies thereof
- ---------- filed with the Commission in accordance with the
-8-
<PAGE>
applicable paragraph of Rule 424(b) under the Act and will
supply at least ten copies thereof (and additional copies if
requested) to the Agent which presented the order (the
"Presenting Agent"). The Presenting Agent will cause a
Prospectus and Pricing Supplement to be delivered to the
purchaser of such Certificated Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in it sole discretion, to
- ------------- instruct the Agents to suspend at any time for any period of
Solicitation; time or permanently, the solicitation of orders to purchase
- ------------- Certificated Notes. Upon receipt of such instructions, the
Amendment or Agents will forthwith suspend solicitation until such time
- ------------ as the Company has advised them that such solicitation may
Supplement: be resumed.
- ----------
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection with the
settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements
that may be made in the event that the Company determines
that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will promptly
advise the Agents and furnish the Agents with the proposed
amendment or supplement and with such certificates and
opinions as are required, all to the extent required by and
in accordance with the terms of the Agency Agreement.
Subject to the provisions of the Agency Agreement, the
Company may file with the Commission any supplement to the
-9-
<PAGE>
Prospectus relating to the Notes. The Company will provide
the Agents and the Trustee with copies of any such
supplement, and confirm to the Agents that such supplement
has been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Procedure for When the Company has determined to change the interest rates
- ------------- of Certificated Notes being offered, it will promptly advise
Rate Changes: the Agents and the Agents will forthwith suspend
- ------------ solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the Agents of
the new interest rates, the Agents may resume solicitation
of orders. Until such time only "indications of interest"
may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement relating
- ----------- to a Certificated Note must accompany or precede the
Prospectus: earliest of any written offer of such Certificated Note,
- ---------- confirmation of the purchase of such Certificated Note and
payment for such Certificated Note by its purchaser. If
notice of a change in the terms of the Certificated Notes is
received by the Agents between the time an order for a
Certificated Note is placed and the time written
confirmation thereof is sent by the Presenting Agent to a
customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting
forth the terms in effect when the order was placed. Subject
to "Suspension of Solicitation; Amendment or Supplement"
above, the Presenting Agent will deliver a Prospectus and
Pricing Supplement as herein described with respect to each
Certificated Note sold by it. The Company will make such
delivery if such Certificated Note is sold directly by the
Company to a purchaser (other than any Agent).
Confirmation: For each order to purchase a Certificated Note solicited by
- ------------ any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the details set
forth above and delivery and payment instructions.
-10-
<PAGE>
Settlement: The receipt by the Company of immediately available funds in
- ---------- exchange for an authenticated Certificated Note delivered to
the Presenting Agent and the Presenting Agent's delivery of
such Certificated Note against receipt of immediately
available funds shall, with respect to such Certificated
Note, constitute "settlement". All orders accepted by the
Company will be settled on the third Business Day following
the date of sale pursuant to the timetable for settlement
set forth below, unless the Company and the purchaser agree
to settlement on another day which shall be no earlier than
the next Business Day following the date of sale.
Settlement Settlement Procedures with regard to each
- ---------- Certificated Note sold by the Company through any Agent, as
Procedures: agent, shall be as follows:
- ----------
A. The Presenting Agent will advise the Company by
telephone of the following settlement information, in
time for the Trustee to prepare and authenticate the
required Note:
1. Name in which such Certificated Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note, the
interest rate or, in the case of a Floating Rate
Certificated Note, the initial interest rate (if
known at such time), Base Rate, Index Maturity,
Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate
(if any).
-11-
<PAGE>
7. Interest Payment Dates and the Interest Payment
Period.
8. Specified Currency and whether the option to elect
payment in a Specified Currency applies and if the
Specified Currency is not U.S. dollars, the
authorized denominations.
9. Redemption, repayment or extension provisions, if
any.
10. Settlement date.
11. Price (including currency).
12. Presenting Agent's commission, determined as
provided in Section 2 of the Agency Agreement.
13. Whether such Certificated Note is issued at an
original issue discount, and, if so, the total
amount of OID, the yield to maturity and the
initial accrual period OID.
B. The Company will advise Trustee by telephone (confirmed
in writing at any time on the sale date) or electronic
transmission of the information set forth in Settlement
Procedure "A" above and the name of the Presenting
Agent. Before accepting any offer to purchase a
Certificated Note to be settled in less than three
Business Days, the Company shall verify that the
Trustee will have adequate time to prepare and
authenticate such Note.
C. The Company will deliver to Trustee a pre-printed four-
ply packet for such Certificated Note, which packet
will contain the following documents in forms that have
been approved by Company, the Agents and the Trustee:
1. Certificated Note with customer confirmation.
2. Stub One - For Trustee.
-12-
<PAGE>
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will prepare such Certificated Note and
will authenticate such Certificated Note on the
settlement date and deliver it (with the confirmation)
and Stubs One and Two to the Presenting Agent, all in
accordance with the written directions (or oral
instructions confirmed in writing on the next Business
Day) of the Company, and the Presenting Agent will
acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such
acknowledgment of receipt. In the event that the
instructions given by the Presenting Agent for payment
to the account of the Company are revoked, the Company
will as promptly as possible wire transfer to the
account of the Presenting Agent an amount of
immediately available funds equal to the amount of such
payment made.
E. The Presenting Agent will deliver such Certificated
Note (with the confirmation) to the customer against
payment in immediately payable funds. The Presenting
Agent will obtain the acknowledgement of receipt of
such Certificated Note by retaining Stub Two.
F. Trustee will send Stub Three to the Company by first-
class mail.
Settlement For orders of Certificated Notes solicited by any Agent, as
- ---------- agent, and accepted by the Company, Settlement Procedures
Procedures "A" through "F" set forth above shall be completed on or
- ---------- before the respective times (New York City time) set forth
Timetable: below:
- ---------
-13-
<PAGE>
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A 2:00 P.M. on the day before
settlement
B-C 3:00 P.M. on the day before
settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
</TABLE>
Failure to If a purchaser fails to accept delivery of and make payment
- ---------- for any Certificated Note, the Presenting Agent will notify
Settle: the Company and Trustee by telephone and return such
- ------ Certificated Note to the Trustee. Upon receipt of such
notice, the Company will immediately wire transfer to the
account of the Presenting Agent an amount equal to the
amount previously credited to the account of Company in
respect of such Certificated Note. Such wire transfer will
be made on the settlement date, if possible, and in any
event not later than the Business Day following the
settlement date. If the failure shall have occurred for any
reason other than a default by the Presenting Agent in the
performance of its obligations hereunder and under the
Agency Agreement, then the Company will reimburse the
Presenting Agent or Trustee as appropriate, on an equitable
basis for its loss of the use of the funds during the period
when they were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in respect
of which such failure occurred, the Trustee will cancel such
Certificated Note in accordance with the Indenture and so
advise the Company and Trustee will make appropriate entries
in its records and send such cancelled note or other
evidence of cancellation in accordance with the terms of the
indenture.
Trustee Not to Nothing herein shall be deemed to require the Trustee to
- -------------- risk or expend its own funds in connection with any payment
Risk Funds: to the Company, the Agents or the purchaser, it being
- ---------- understood by all parties that payments made by the Trustee
to the Company, the Agents or the purchaser shall be made
only to the extent that funds are provided to the Trustee
for such purpose.
-14-
<PAGE>
Payment of Each Agent shall forward to the Company, on a monthly basis,
- ---------- a statement of the out-of-pocket expenses incurred by such
Expenses: Agent during that month that are reimbursable to it pursuant
- -------- to the terms of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly basis.
Advertising Costs: The Company will determine with the Agents the amount of
- ----------------- advertising that may be appropriate in soliciting orders to
purchase the Certificated Notes. Advertising expenses will
be paid by the Company.
Periodic Periodically, Trustee will send to the Company a
- -------- statement setting forth the principal amount of Certificated
Statements Notes Outstanding as of that date and setting forth a brief
- ---------- description of any sales of Certificated Notes which the
from Trustee: Company has advised Trustee but which have not yet been
- ------------ settled.
-15-
<PAGE>
EXHIBIT B
Energen Corporation
Medium-Term Notes
Due Nine Months or More
from Date of Issue
TERMS AGREEMENT
, 199
Attention:
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated ___________, 1996, between [Agent's
Name(s)] and you, the undersigned agrees to purchase the following Notes of
Energen Corporation:
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
purchase Price: % of Principal Amount [plus
accrued interest from
, 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
<PAGE>
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Agreement:
[Purchaser]
By:
---------------------------
Accepted:
Energen Corporation
By:
--------------------------
Title:
-2-
<PAGE>
Exhibit 1(b)
Energen Corporation
Form of Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Dear Sirs:
Energen Corporation, an Alabama corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you (the "Representatives") are acting as representatives, (a) the
number of shares of Common Stock, $.01 par value, of the Company ("Common
Stock"), set forth in Schedule I hereto (the "Underwritten Securities") and (ii)
an option described in Section 2 hereof to purchase all or any part of the
number of additional shares of Common Stock to cover overallotments as is
specified in Schedule I hereto (the "Option Securities"; the Option Securities,
together with the Underwritten Securities, being hereinafter called the
"Securities"). If the firm or firms listed in schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and
------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if the
offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (the file
number of which is set forth in Schedule I hereto) on such Form, including
a basic prospectus, for registration under the Act of the offering and sale
of the Securities. The Company may have filed one or more amendments
thereto, and may have used
<PAGE>
a Preliminary Final Prospectus, each of which has previously been furnished
to you. Such registration statement, as so amended, has become effective.
The offering of the Securities is a Delayed Offering and, although the
Basic Prospectus may not include all the information with respect to the
Securities and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and the rules thereunder
to be included therein as of the Effective Date. The Company will next
file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such registration
statement relating to the Securities and the offering thereof. As filed,
such final prospectus supplement shall include all required information
with respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
(ii) The Company meets the requirements for the use of Form S-3 under
the Act and has filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file with the
Commission either (x) a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y) prior
to the effectiveness of such registration statement, an amendment to such
registration statement, including the form of final prospectus supplement.
In the case of clause (x), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in the Final Prospectus with respect to the Securities and the
offering thereof. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional
-2-
<PAGE>
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company makes
-------- -------
no representations or warranties as to the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective and each date after the date hereof on which
a document incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the Registration
Statement at the Effective Date including, in the case of a Non-Delayed
Offering, any Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to filing of
the Final Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case of a Non-
Delayed offering, no filing pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the Securities, including the Basic
Prospectus, included in the Registration
-3-
<PAGE>
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution Time), in the form in
which it shall become effective) and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term shall
include any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the Securities and the offering
thereof permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated there by reference. A
"Non-Delayed Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement, with the
result that, pursuant to Rules 415 and 430A, all information (other than Rule
430A Information) with respect to the securities so offered must be included in
such registration statement at the effective date thereof. A "Delayed Offering"
shall mean an offering of securities pursuant to Rule 415 which does not
commence promptly after the effective date of a registration statement, with the
result that only information required pursuant to Rule 415 need be included in
such registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in Schedule I hereto, the amount of Underwritten Securities set forth
opposite such Underwriter's name in Schedule II hereto.
-4-
<PAGE>
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
the number of shares of Option Securities set forth in Schedule I hereto at the
same purchase price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Prospectus upon written or telegraphic notice
by the Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the option
and the settlement date. Delivery of certificates for the shares of Option
Securities, and payment therefor, shall be made as provided in Section 3 hereof.
The number of shares of the Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the
--------------------
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the second business
day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five business
days after such specified date as the Representatives shall designate), which
date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on or by a New York
Clearing House bank and payable in next day funds. Delivery of the Underwritten
Securities and the Option Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than one full business day in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
-5-
<PAGE>
If the option provided for in Section 2(b) hereof is exercised after
the second business day prior to the Closing Date, the Company will deliver (at
the expense of the Company) to the Representatives, at [address] on the date
specified by the Representatives (which shall be within three business days
after exercise of said option), certificates for the Option Securities in such
names and denominations as the Representatives shall have requested against
payment of the purchase price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by a New York Clearing
House bank and payable in next day funds. If settlement for the Option
Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 5 hereof.
4. Agreements. The Company agrees with the several Underwriters
----------
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (i) when the Registration Statement, if not effective
at the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or supplement to
the Final Prospectus or for any additional information, (v) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the
-6-
<PAGE>
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the-Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (ii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will pay the fee of the National
Association of Securities Dealers, Inc., in connection with its review of
the offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
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<PAGE>
(f) Until the date set forth on Schedule I hereto, the Company will
not, without the prior written consent of the Representatives, offer, sell
or contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any other shares of Common Stock or any
securities convertible into, or exchangeable for, shares of Common Stock;
provided, however, that the Company may issue and sell Common Stock
-------- -------
pursuant to any director or employee stock option, stock bonus or incentive
plan, stock ownership plan, any Company sponsored retirement or similar
plan, any dividend reinvestment or direct stock purchase plan or any other
similar plan of the Company in effect at the Execution Time and the Company
may issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time.
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-
198, An Act Relating to Disclosure of Doing Business with Cuba, and the
---------------------------------------------------------
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date the Registration Statement becomes or has become effective with
the Securities and Exchange Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes
in any material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time and the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New York City time on
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<PAGE>
such date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion of
Bradley, Arant, Rose & White, counsel for the Company, dated the Closing Date,
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 State of Alabama,
with full corporate power and authority to own its properties and conduct
its business as described in the Final Prospectus, and is duly qualified to
do business as a foreign corporation and is in good standing under the laws
of each jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except where the
failure to so qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results
of operations of the Company and its subsidiaries taken as a whole;
(ii) each of Alabama Gas Corporation and Taurus Exploration, Inc.
(individually, a "Subsidiary" and collectively, the "Subsidiaries") has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, will full corporate power and authority to own its properties
and conduct its business as described in the Final Prospectus, and Alabama
Gas Corporation is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or
conducts material business, except where the failure to so qualify does not
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and
its subsidiaries as a whole; and all outstanding shares of capital stock of
each Subsidiary have been duly authorized and validly issued, and are fully
paid and nonassessable, and are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, any other security
interests, claims, liens or
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<PAGE>
encumbrances (with the exception of those encumbrances in the Indenture
dated ___________, 1996 between the Company and The Bank of New York, as
trustee);
(iii) the Company's authorized equity capitalization is as set forth
in the Final Prospectus; the capital stock of the Company conforms to the
description thereof contained in the Final Prospectus; the outstanding
shares of Common Stock have been duly and validly authorized and issued and
are fully paid and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange; the
certificates for the Securities conform to the requirements of Alabama law;
and the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or, to the knowledge of counsel, similar rights
to subscribe for the Securities;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or the
Subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final Prospectus, and
there is no franchise, contract or other document of a character required
to be described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus describing any
material contracts or agreements relating to the Company fairly summarize
such matters;
(v) the Registration Statement has become effective under the Act;
any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) comply as to form
in all material respects with the applicable
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<PAGE>
requirements of the Act and the Exchange Act and the respective rules
thereunder;
(vi) although such counsel has not undertaken, except as otherwise
indicated in their opinion, to determine independently, and does not assume
any responsibility, for the accuracy or completeness of the statements in
the Registration Statement or the Final Prospectus, nothing has come to the
attention of such counsel that has caused them to believe that at the
Effective Date the Registration Statement contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein, or necessary to make the statements therein not misleading or that
the Final Prospectus includes 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
(it being understood that such counsel need express no opinion with respect
to the financial statements and the notes thereto and the schedules and
other financial and statistical data included in the Registration Statement
or the Final Prospectus);
(vii) this Agreement has been duly authorized, executed and delivered
by the Company;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals (specified in such
opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter or by-
laws of the Company or the Subsidiaries or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Company or the Subsidiaries is a party or bound or any judgment, order or
decree known to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any
of its subsidiaries;
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<PAGE>
(x) to the knowledge of such counsel after due inquiry, no holders
of securities of the Company have rights to the registration of such
securities under the Registration Statement; and
(xi) the Company has filed an annual exemption statement on Form U-
3A-2 pursuant to Rule 2 under the Public Utility Holding Company Act of
1935 (the "1935 Act"), and the Company is exempt from all of the provisions
of the 1935 Act except Section 9(a)(2) of the 1935 Act and, to the
knowledge of such counsel after due inquiry, has received no notice,
request or inquiry from the Commission terminating or threatening to
terminate or questioning such exemption.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Alabama or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Winthrop, Stimson, Putnam
& Roberts, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplement to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
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<PAGE>
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Final Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) At the Closing Date, Coopers & Lybrand shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules and pro forma financial statements, if any, included or
incorporated by reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; the
performance of the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information
as described in SAS No. 71, Interim Financial Information, on the latest
-----------------------------
unaudited financial statements, if any, included or incorporated by
reference in the Prospectus; a reading of the minutes of the meetings of
the stockholders, directors, audit and finance committees of the Company
and its subsidiaries; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date of
the most recent audited financial statements included or incorporated in
the Prospectus (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally accepted
auditing standards and they would not necessarily
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<PAGE>
reveal matters of significance with respect to the comments made in such
letter), nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations thereunder; and that any material modifications should be made
to said unaudited financial statements for them to be in conformity with
generally accepted accounting principles;
(2) with respect to the period subsequent to the date of the most
recent financial statements (other than any capsule information), audited
or unaudited, included or incorporated in the Registration Statement and
the Final Prospectus, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in the common
stock, preferred stock, current liabilities or long-term debt of the
Company and its subsidiaries or decreases in the total common stockholders'
equity of the Company as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the Registration
Statement and the Final Prospectus, or for the period from the date of the
most recent financial statements included or incorporated in the
Registration Statement and the Final Prospectus to such specified date
there were any decreases, as compared with the corresponding period in the
preceding year in operating revenues, operating income, other income or net
income of the Company and its subsidiaries except in all instances for
changes or decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Representatives; or
(3) the amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Final
Prospectus do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not determined on a basis
substantially consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the Registration
Statement and the Final Prospectus;
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<PAGE>
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items [1, 2, 6, 7 and 11] of the Company's
Annual Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and
the Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated in the Registration Statement and the Final Prospectus,
on the basis of a reading of the unaudited pro forma financial
statements, carrying out certain specified procedures, inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Coopers & Lybrand shall have furnished to the Representatives a letter or
letters, dated as of the Execution Time, in form and substance satisfactory to
the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in
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<PAGE>
paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties
of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Winthrop, Stimson, Putnam & Roberts, counsel for the
Underwriters, at One Battery Park Plaza, New York, New York, on the Closing
Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9(i) hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
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<PAGE>
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
-------- -------
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such
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<PAGE>
action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory to
-------- -------
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood, however, that the Company shall,
in connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
indemnified parties, which firm shall be designated in writing by [Lead
Representative], and that all such fees and expenses shall be reimbursed as they
are incurred. An indemnifying party will not, without the prior written consent
of the indemnified parties, which consent shall not be unreasonably withheld,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. The Company shall not be liable for any settlement of any
such action, suit or proceeding effected without its written consent, but if
settled with such written
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<PAGE>
consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the Company agrees to indemnify and hold harmless any
indemnified party, but only to the extent provided in paragraph (a) of this
Section 7, from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
-------- -------
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in
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<PAGE>
each case to the applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
-------- -------
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange, (ii) trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iii) a banking moratorium
shall have been declared either by Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
-20-
<PAGE>
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Energen Corporation, 2101 Sixth Avenue North,
Birmingham, Alabama 35203, Attention: Treasurer.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be simultaneously executed in
------------
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall together constitute one and the same instrument.
-21-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Energen Corporation
By:
----------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Names of Representatives]
By: [Lead Representative]
By:
-------------------------
[Title]
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
or
[Lead Representative]
By:
-------------------------
[Title]
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
-22-
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Amount and Purchase Price of Securities:
Number of Underwritten Securities:
Number of Option Securities:
Purchase price per share:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed Offering]
Date referred to in Section 4(f) after which the Company may offer or sell
additional Common Stock or securities convertible into, or exchangeable
for, shares of Common Stock without the consent of the Representative(s):
Modification of items to be covered by the letter from [name of accountants]
delivered pursuant to Section 5(e) at the Execution Time:
<PAGE>
SCHEDULE II
Number of Shares
Underwriters to be Purchased
------------ ----------------
--------------------
Total ..................
====================
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Energen Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on
___________, 19__ (the "Delivery Date"), $________ principal amount of the
Company's ________________ (the "Securities") offered by the Company's
Prospectus dated _______________, 19__, and related Prospectus Supplement dated
_______________, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of ___% of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from _____________,
19__, to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 A.M., New York City time, on the Delivery Date to or
upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the
<PAGE>
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
-----------------------------------
(Name of Purchaser)
By:
--------------------------------
(Signature and Title of Officer)
-----------------------------------
(Address)
-2-
<PAGE>
Accepted:
Energen Corporation
By:
----------------------------
(Authorized Signature)
-3-
<PAGE>
EXHIBIT 4(i)
================================================================================
ENERGEN CORPORATION
TO
THE BANK OF NEW YORK
as Trustee
______
INDENTURE
Dated as of ___________ __, 1996
______
================================================================================
<PAGE>
ENERGEN CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ___________ __, 1996
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C>
(S) 310(a)(1) .................... 909
(a)(2) .................... 909
(a)(3) .................... Not Applicable
(a)(4) .................... Not Applicable
(a)(5) .................... 909
(b) .................... 908
(c) .................... Not Applicable
(S) 311(a) .................... 913(c)
(b) .................... 913(b)
(b)(2) .................... 1003(a)(2)
.................... 1003(b)
(c) .................... Not Applicable
(S) 312(a) .................... 1001
.................... 1002(a)
(b) .................... 1002(b)
(c) .................... 1002(c)
(S) 313(a) .................... 1003(a)
(b) .................... 1003(b)
(c) .................... 1003(c)
(c)(2) .................... Not Applicable
(d) .................... 1003(d)
(S) 314(a)(4) .................... 606
(b) .................... Not Applicable
(c)(1) .................... 102
(c)(2) .................... 102
(c)(3) .................... Not Applicable
(d) .................... 1003
(e) .................... 102
(S) 315(a) .................... 901(a)
(b) .................... 902
.................... 1003(a)(6)
(c) .................... 901(b)
(d) .................... 901(c)
(d)(1) .................... 901(a)(1)
(d)(2) .................... 901(c)(2)
(d)(3) .................... 901(c)(3)
(e) .................... 814
(S) 316(a) last sentence................ 101
(a)(1)(A) .................... 812
(a)(1)(B) .................... 813
(a)(2) .................... Not Applicable
(b) .................... 808
(S) 317(a)(1) .................... 803
(a)(2) .................... 804
(b) .................... 603
(S) 318(a) .................... 607
</TABLE>
<PAGE>
TABLE OF CONTENTS
Page
----
<TABLE>
<CAPTION>
ARTICLE ONE
Definitions and Other Provisions of General Application
<C> <S> <C>
Section 101. Definitions........................................... 1
Section 102. Compliance Certificates and Opinion................... 8
Section 103. Form of Documents Delivered to Trustee................ 9
Section 104. Acts of Holders....................................... 10
Section 105. Notices, Etc. to Trustee and Company.................. 11
Section 106. Notice to Holders of Securities; Waiver............... 12
Section 107. Conflict with Trust Indenture Act..................... 12
Section 108. Effect of Headings and Table of Contents.............. 12
Section 109. Successors and Assigns................................ 13
Section 110. Separability Clause................................... 13
Section 111. Benefits of Indenture................................. 13
Section 112. Governing Law......................................... 13
Section 113. Legal Holidays........................................ 13
<CAPTION>
ARTICLE TWO
Security Forms
<C> <S> <C>
Section 201. Forms Generally....................................... 14
Section 202. Form of Trustee's Certificate of
Authentication........................................ 14
<CAPTION>
ARTICLE THREE
The Securities
<C> <S> <C>
Section 301. Amount Unlimited; Issuable in Series.................. 15
Section 302. Denominations......................................... 18
Section 303. Execution, Authentication, Delivery and
Dating................................................ 18
Section 304. Temporary Securities.................................. 21
Section 305. Registration, Registration of Transfer and
Exchange.............................................. 22
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities............................................ 23
Section 307. Payment of Interest; Interest Rights
Preserved............................................. 24
Section 308. Persons Deemed Owners................................. 25
Section 309. Cancellation.......................................... 25
Section 310. Computation of Interest............................... 26
Section 311. Payment to Be in the Proper Currency.................. 26
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE FOUR
Redemption of Securities
<C> <S> <C>
Section 401. Applicability of Article............................... 26
Section 402. Election to Redeem; Notice to Trustee.................. 26
Section 403. Selection of Securities to Be Redeemed................. 27
Section 404. Notice of Redemption................................... 27
Section 405. Securities Payable on Redemption Date.................. 28
Section 406. Securities Redeemed in Part............................ 29
<CAPTION>
ARTICLE FIVE
Sinking Funds
<C> <S> <C>
Section 501. Applicability of Article............................... 29
Section 502. Satisfaction of Sinking Fund Payments with
Securities............................................. 30
Section 503. Redemption of Securities for Sinking Fund.............. 30
<CAPTION>
ARTICLE SIX
Covenants
<C> <S> <C>
Section 601. Payment of Principal, Premium and Interest............. 31
Section 602. Maintenance of Office or Agency........................ 31
Section 603. Money for Securities Payments to Be
Held in Trust.......................................... 32
Section 604. Corporate Existence.................................... 33
Section 605. Maintenance of Properties.............................. 33
Section 606. Statement as to Compliance; Notice of Certain
Defaults............................................... 34
Section 607. Waiver of Certain Covenants............................ 34
Section 608. Restriction on Liens................................... 35
Section 609. Restrictions on Sale and
Lease-Back Transactions................................ 38
<CAPTION>
ARTICLE SEVEN
Satisfaction and Discharge
<C> <S> <C>
Section 701. Satisfaction and Discharge of Indenture................ 39
Section 702. Legal and Covenant Defeasance.......................... 40
Section 703. Application of Trust Money............................. 44
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE EIGHT
Events of Default; Remedies
<C> <S> <C>
Section 801. Events of Default..................................... 44
Section 802. Acceleration of Maturity; Rescission and
Annulment............................................. 46
Section 803. Collection of Indebtedness and Suits for
Enforcement by Trustee................................ 47
Section 804. Trustee May File Proofs of Claim...................... 48
Section 805. Trustee May Enforce Claims Without Possession
of Securities......................................... 49
Section 806. Application of Money Collected........................ 49
Section 807. Limitations on Suits.................................. 49
Section 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest....................... 50
Section 809. Restoration of Rights and Remedies.................... 50
Section 810. Rights and Remedies Cumulative......................... 52
Section 811. Delay or Omission Not Waiver........................... 52
Section 812. Control by Holders of Securities....................... 52
Section 813. Waiver of Past Defaults................................ 53
Section 814. Undertaking for Costs.................................. 53
<CAPTION>
ARTICLE NINE
The Trustee
<C> <S> <C>
Section 901. Certain Duties and Responsibilities................... 54
Section 902. Notice of Defaults.................................... 55
Section 903. Certain Rights of Trustee............................. 55
Section 904. Not Responsible for Recitals or Issuance of
Securities............................................ 57
Section 905. May Hold Securities................................... 57
Section 906. Money Held in Trust................................... 57
Section 907. Compensation and Reimbursement........................ 57
Section 908. Disqualification; Conflicting Interests............... 58
Section 909. Corporate Trustee Required; Eligibility............... 65
Section 910. Resignation and Removal; Appointment of
Successor............................................. 65
Section 911. Acceptance of Appointment by Successor................ 67
Section 912. Merger, Conversion, Consolidation or
Succession to Business................................ 68
Section 913. Preferential Collection of Claims
Against Company........................................ 69
Section 914. Appointment of Authenticating Agent.................... 73
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
<C> <S> <C>
Section 1001. Company to Furnish Trustee Names and
Addresses of Holders.................................. 75
Section 1002. Preservation of Information;
Communications to Holders............................. 75
Section 1003. Reports by Trustee.................................... 77
Section 1004. Reports by Company.................................... 78
<CAPTION>
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
<C> <S> <C>
Section 1102. Successor Corporation Substituted...................... 80
<CAPTION>
ARTICLE TWELVE
Supplemental Indentures
<C> <S> <C>
Section 1201. Supplemental Indentures Without Consent
of Holders............................................ 80
Section 1202. Supplemental Indentures with Consent of
Holders............................................... 82
Section 1203. Execution of Supplemental Indentures.................. 84
Section 1204. Effect of Supplemental Indentures..................... 84
Section 1205. Conformity With Trust Indenture Act................... 84
Section 1206. Reference in Securities to Supplemental
Indentures............................................ 84
Section 1207. Modification Without Supplemental
Indenture............................................. 85
<CAPTION>
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
<C> <S> <C>
Section 1301. Purposes for Which Meetings
May Be Called......................................... 85
Section 1302. Call, Notice and Place of Meetings.................... 85
Section 1303. Persons Entitled to Vote at Meetings.................. 86
Section 1304. Quorum; Action........................................ 86
Section 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings........................................... 88
Section 1306. Counting Votes and Recording Action of
Meetings.............................................. 89
Section 1307. Action Without Meeting................................ 89
Section 1308. Fixing of Record Date................................. 89
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
<C> <S> <C>
Section 1401. Liability Solely Corporate............................. 90
</TABLE>
-v-
<PAGE>
Exhibit 4(i)
INDENTURE dated as of _____________, 1996, between ENERGEN
CORPORATION, a corporation duly organized and existing under the laws of the
State of Alabama (herein called the "Company"), having its principal office at
2101 Sixth Avenue North, Birmingham, Alabama 35203, and The Bank of New York, a
state banking corporation organized under the laws of the State of New York and
having its principal corporate trust office at ____________, _____________, as
trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided;
and all other 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 thereof, it is mutually covenanted and agreed for the
equal and proportionate benefit of all Holders of the Securities or of any
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:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any
<PAGE>
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; provided however, that in determining generally accepted
accounting principles applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation of any administrative
agency, regulatory authority or other governmental body having jurisdiction over
the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in that
Article.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"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 or Persons authorized by the
Trustee to act on behalf of the Trustee to authenticate one or more series of
Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee thereof.
"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 a Place of Payment or any
other particular location specified in the Securities or this Indenture, means
any day, other than a Saturday or Sunday, which is not a day on which banking
institutions and trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents
-2-
<PAGE>
(however designated, whether voting or non-voting) of such Person's capital
stock, whether now outstanding or issued after the date of this Indenture,
including, without limitation, all common stock and preferred stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing such duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its 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 shall be principally
administered, which office at the date of execution of this Indenture is located
at 10161 Centurion Parkway, Towermarc Plaza, 2nd Floor, Jacksonville, FL 32256,
Attention: Sandra Carreker.
"Corporation" means a corporation, association, company, joint stock
company, limited liability company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in United States Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency other than
United States Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
-3-
<PAGE>
"Event of Default" has the meaning specified in Section 801.
"Funded Debt" means all indebtedness of a Person that by its terms or
by the terms of any instrument or agreement relating thereto matures more than
one year from, or is directly or indirectly renewable or extendable at the
option of such Person to a date more than one year from the date of creation
thereof (including an option of such Person under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of one
year or more), but excluding any payments due under the terms thereof within 12
months of any date of determination (including any deposit or payment required
to be made under any prepayment provision, sinking fund, purchase fund or
similar provision).
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause (a)
above or in any specific interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or specific interest
or principal payments shall be a bank or trust company subject to Federal or
state supervision or examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the holders of such
certificates, depositary receipts or other instruments the full amount received
by such custodian in respect of such obligations or specific payments and shall
not be permitted to make any deduction therefrom.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 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.
-4-
<PAGE>
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity,
declaration of acceleration, upon call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"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 802.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with Section
701; and
(c) Securities which have been paid pursuant to Section 306 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
and the Company 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 Securities Outstanding under this Indenture, or the Outstanding
Securities of any series or Tranche, have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor (unless
the Company, such Affiliate
-5-
<PAGE>
or such obligor owns all Securities Outstanding under this Indenture, or
all Outstanding Securities of each such series and each such Tranche, as
the case may be, determined without regard to this clause (x)) 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 or waiver or upon any
such determination as to the presence of a quorum, only Securities which
the Trustee knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor;
(y) 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 802; and
(z) the principal amount of any Security which is denominated in a
currency other than U.S. Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall be the amount of U.S.
Dollars which could have been purchased by the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. Dollar equivalent on
the date determined as set forth below of the amount determined as provided
in (y) above) of such currency or composite currency evidenced by such
Security, in each such case certified to the Trustee in an Officers'
Certificate based (i) on the average of the mean of the buying and selling
spot rates quoted by three banks which are members of the New York Clearing
House Association selected by the Company in effect at 11:00 A.M. (New York
time) in The City of New York on the fifteenth Business Day preceding any
such determination or (ii) if on such fifteenth Business Day it shall not
be possible or practicable to obtain such quotations from such three banks,
on such other quotations or alternative methods of determination which
shall be as consistent as practicable with the method set forth in (i)
above.
"Paying Agent" means any Person, including the Company, 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
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<PAGE>
Securities, including without limitation 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 or
its agents upon the issuance of such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust or unincorporated organization or any
government or any political subdivision, instrumentality or agency thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places, specified as contemplated by Section 301, at
which, subject to Section 602, the principal of and premium, if any, and
interest, if any, on the Securities of such series are payable.
"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 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, 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.
"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.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means
any officer in the corporate trust department of the Trustee or any other
officer of the Trustee customarily performing functions similar to those
performed by any such officer and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
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<PAGE>
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means each of Alabama Gas Corporation, an
Alabama corporation, and Taurus Exploration, Inc., an Alabama corporation, or
their respective successors by merger, consolidation, sale of assets or
otherwise.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"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 fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Tranche" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and date of issuance.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities 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, except as provided
in Section 1205.
"United States" means the United States of America, its territories,
its possessions and other areas subject to its jurisdiction.
Section 102. Compliance Certificates and Opinion.
-----------------------------------
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular
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<PAGE>
application or request, no certificate or opinion need be furnished except as
specifically contemplated by such provision of this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) 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 his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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<PAGE>
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,
election, waiver or other action provided by this Indenture to be made, given 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 or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
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.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the proviso to the definition of "Outstanding") and serial numbers of
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of the
same Security and the
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<PAGE>
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) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action taken
by such Act of Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in the opinion of
the Trustee and the Company, to such action may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of the record date.
Section 105. Notices, Etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given,
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<PAGE>
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Treasurer, at 2101 Sixth Avenue North, Birmingham, Alabama
35203, or at any other address previously furnished in writing to the Trustee by
the Company.
Section 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed, first
class postage prepaid, to each Holder affected by such event, at the address of
such Holder 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 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 to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. 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.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, 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.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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<PAGE>
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 the Securities shall be
invalid, illegal or unenforceable, the validly, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, 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.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity 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
other than a provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officers' Certificate which establishes the terms of
such Securities or Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal and premium, if
any, need not be made at such Place of Payment on such date, 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 or Redemption Date, or at the
Stated Maturity, and, if such payment is made or duly provided for on such
Business Day, that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day.
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<PAGE>
ARTICLE TWO
Security Forms
--------------
Section 201. Forms Generally.
---------------
The definitive Securities of each series shall be in substantially the
forms thereof established in Board Resolutions or Officers' Certificates
pursuant to Board Resolutions, or in 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 as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the forms of Securities of any series are established in a Board
Resolution or in an Officers' Certificate pursuant to a Board Resolution, such
Board Resolution and Officers' Certificate, if any, shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced by
their execution thereof.
Section 202. Form of Trustee's Certificate of
Authentication.
---------------------------------
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By:______________________________
Authorized Signatory
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<PAGE>
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.
The Securities may be issued in one or more series. Subject to the
last paragraph of this Section, there shall be established in a Board Resolution
or in an Officers' Certificate pursuant to a Board Resolution, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series,
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities of
such 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 Section 304, 305, 306, 406 or 1206 and, except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than 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;
(d) the date or dates on which the principal of the Securities of such
series is payable;
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof shall bear interest, if any (including the rate or rates at
which overdue principal, premium or interest shall bear interest, if any),
or any method or methods by which such rate or rates shall be determined,
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 Securities on any Interest Payment
Date; and the basis of computation of interest, if other than as provided
in Section 310;
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<PAGE>
(f) the place or places where (1) the principal of and premium, if
any, and interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, (2) any Securities of such series, or any
Tranche thereof, may be surrendered for registration of transfer, (3)
Securities of such series, or any Tranche thereof, may be surrendered for
exchange and (4) 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;
(g) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part, at the option of
the Company;
(h) the obligation, if any, of the Company to redeem or purchase the
Securities of such series, or any Tranche thereof, pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms
and conditions upon which such Securities shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(i) the denominations in which Securities, if any, of such series, or
any Tranche thereof, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
(j) whether Securities of the series may be issued in whole or in part
in global form and, if so, the identity of the depositary for such
Securities, in global form, and the terms and conditions, if any, on which
interests in such Securities, in global form, may be exchanged, in whole or
in part, for the individual securities represented thereby;
(k) if the principal of or premium, if any, or interest, if any, on
the Securities of such 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;
(l) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest, if
any, on the Securities of such series, or any Tranche thereof, shall be
payable (if other than the currency of the United States);
(m) if the principal of or premium, if any, or interest on the
Securities of such 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
-16-
<PAGE>
or other property, the type and amount of such securities or other
property, or the method 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;
(n) if the amount of payments of principal of or premium, if any, or
interest, if any, on the Securities of such series, or any Tranche thereof,
may be determined with reference to an index, the manner in which such
amounts shall be determined;
(o) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(p) any Events of Default, in addition to those specified in Section
801, with respect 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
Six;
(q) 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;
(r) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series, or
any Tranche thereof, denominated in any currency other than United States
Dollars or in a composite currency, and any additional or alternative
provisions for the reinstatement of the Company's indebtedness in respect
of such Securities after the satisfaction and discharge thereof as provided
in Section 701;
(s) 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;
(t) 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; and
(u) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
If any of the terms of the series are established in a Board Resolution or in an
Officers' Certificate pursuant to a Board
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<PAGE>
Resolution, such Board Resolution and Officers' Certificate, if any, shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities. With respect to Securities of a series subject to a Periodic
Offering, such Board Resolution or Officer's Certificate 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 a Company Order as contemplated by the proviso of the
third paragraph of Section 303.
Section 302. Denominations.
-------------
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, the Securities of each 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
Treasurer, Controller, or any Assistant Treasurer and any one of the following
officers of the Company: Chairman of the Board, President, Executive Vice
President, Senior Vice President, any Vice President, Secretary, Treasurer,
Controller, Assistant Secretary and Assistant Treasurer. The signature of any
or all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication and delivery, together with a Company
Order for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities; provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Company Order may be delivered by the
Company to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, all pursuant to a Company Order or pursuant to such
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procedures acceptable to the Trustee as may be specified from time to time by a
Company Order, (c) the maturity date or dates, original issue date or dates,
interest rate or rates and any other terms of Securities of such series shall be
determined by Company Order or pursuant to such procedures and (d) if provided
for in such procedures, such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company or its
duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing.
In authenticating Securities of any series, and accepting
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 901) shall be
fully protected in relying upon, an Opinion of Counsel stating
(a) that the forms of such Securities have been duly authorized by the
Company and have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities have been duly authorized by the
Company and have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by this
Indenture, and enforceable against the Company in accordance with their
terms, subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting
creditors' rights generally, and to general principles of equity and
doctrines applicable thereto (including, but not limited to, all matters of
public policy);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (b) and (c)
above may, alternatively, state, respectively,
(x) that, when the terms of such Securities shall have been
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 and in accordance with a Board Resolution or an Officers' Certificate
pursuant to a Board Resolution, as the case may be, such terms will have
been duly authorized by the Company and will have been
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<PAGE>
established in conformity with the provisions of this Indenture; and
(y) that such Securities, when (1) executed by the Company, (2)
authenticated and delivered by the Trustee in accordance with this
Indenture, (3) issued and delivered by the Company and (4) paid for, all as
contemplated by and in accordance with the aforesaid Company Order or
specified procedure, as the case may be, will have been duly issued under
this Indenture and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by the Indenture, and
enforceable against the Company in accordance with their terms, subject, as
to enforcement, to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally, and to
general principles of equity and doctrines applicable thereto (including
but not limited to, all matters of public policy).
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until such opinion or other documents have been
superseded or revoked. In connection with the authentication and delivery of
securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and deliver
such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution as permitted by Sections 201 or
301, the Trustee shall not be required to authenticate such Securities if the
issuance of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and
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<PAGE>
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its behalf, but
shall never have been issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 102 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 hereof.
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, with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities; provided, however, that temporary
Securities need not recite specific redemption, sinking fund, conversion or
exchange provisions.
If temporary Securities of any series are issued, the Company shall
cause definitive Securities of such 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 maintained pursuant to Section 602
in a Place of Payment for such 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 definitive Securities of the same series, of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder.
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<PAGE>
Section 305. Registration, Registration of Transfer
and Exchange.
----------------------------------------
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to Section 602 a register (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 the
registration of transfer thereof.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section 602
in a Place of Payment for such 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 authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at any 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 or any
transfer agent) be duly endorsed or shall be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent duly executed by the Holder thereof or his attorney duly
authorized in writing.
Unless otherwise provided in a Board Resolution or an Officers'
Certificate pursuant to a Board Resolution, or in an indenture supplemental
hereto, with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 406 or 1206 not involving any transfer.
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<PAGE>
The Company shall not be required (a) to issue, to register the
transfer of or to exchange Securities of any series during a period of 15 days
immediately preceding the date notice is given identifying the serial numbers of
the Securities of such series called for redemption or (b) to issue, to register
the transfer of or to exchange any Security so selected for redemption in whole
or in part, except the unredeemed portion of any Security being redeemed in
part.
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 (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and 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.
Notwithstanding the foregoing, 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, 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
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section 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 any such
new Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section 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.
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<PAGE>
Section 307. Payment of Interest; Interest Rights
Preserved.
-------------------------------------
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, 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 related 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 (a) or (b) below:
(a) 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 (which
shall be not less than 25 days after the receipt by the Trustee of such
notice), and at the same time the Company shall deposit with the Trustee an
amount 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 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 promptly 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 the address of such Holder 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
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<PAGE>
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (b).
(b) 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 and Section 305,
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.
---------------------
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 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, if not theretofore cancelled, shall be promptly cancelled by the Trustee.
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 or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Unless the Company shall direct by a Company
Order that cancelled Securities be returned to it, all cancelled Securities held
by the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of destruction to the Company upon the Company's request.
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<PAGE>
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360 day year consisting of twelve 30-day months.
Section 311. Payment to Be in the Proper Currency.
------------------------------------
In the case of any Securities denominated in any currency other than
United States Dollars or in a composite currency (the "Required Currency"),
except as otherwise provided therein, the obligation of the Company to make any
payment of the principal thereof, or the premium or interest thereon, shall not
be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency or which, when exchanged for the Required Currency by the Trustee, is
less than the full amount of Required Currency then due and payable.
ARTICLE FOUR
Redemption of Securities
------------------------
Section 401. Applicability of Article.
------------------------
Securities of any series, or any Tranche thereof, 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 for Securities
of such series or Tranche) in accordance with this Article.
Section 402. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officers' Certificate. The Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee) notify the Trustee in
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writing of such Redemption Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 403. Selection of Securities to Be Redeemed.
--------------------------------------
If less than all the Securities of any series, or Tranche thereof, are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Security Registrar from the Outstanding Securities of such series or Tranche
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 (equal to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination larger than the minimum
authorized denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officers' Certificate, the Company shall
have offered to purchase all Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities shall have been tendered
to the Company for such purchase, the Trustee, if so directed by Company Order,
shall select for redemption all such Securities which have not been so tendered.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
to be redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 404. Notice of Redemption.
--------------------
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, notice of redemption shall be given in the manner
provided in Section 106 to the Holders to be redeemed not less than 30 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
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(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche are
to be redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part,
(d) 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,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the
case.
With respect to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice, such Securities shall be
deemed to have been paid in accordance with Section 701, such notice may state
that such redemption shall be conditional upon the receipt by the Trustee, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities and
that if such money shall not have been so received such notice shall be of no
force or 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.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for 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.
Section 405. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof 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, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security or portion thereof
shall be paid by
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<PAGE>
the Company at the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that any installment of interest on any
Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or more
Predecessor Securities, registered as such at the close of business on the
related Regular Record Date according to the terms of such Security or
Predecessor Security and subject to the provisions of Section 307.
Section 406. Securities Redeemed in Part.
---------------------------
Any 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 Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security, without service
charge, a new Security or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
-------------
Section 501. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, 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, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
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<PAGE>
Section 502. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (a) may deliver Outstanding Securities (other than any
previously called for redemption) of a series or Tranche in respect of which a
mandatory sinking fund payment is to be made and (b) may apply as a credit
Securities of such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund payment if such Securities
shall have been previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 503. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series or any Tranche thereof, the Company shall deliver to
the Trustee an Officers' Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by delivering and crediting Securities of such series or
Tranche pursuant to Section 502 and stating the basis for such credit and
that such Securities have not previously been so credited.
and the Company shall also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such Officers' Certificate, the
next succeeding sinking fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund payment. Not less
than 30 days before each such sinking fund payment date the Trustee shall
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select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 403 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 404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
Covenants
---------
Section 601. Payment of Principal, Premium and Interest.
------------------------------------------
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with the terms
of such Securities and this Indenture.
Section 602. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in each Place of Payment for the Securities
of any series, or any Tranche thereof, an office or agency where such Securities
may be presented or surrendered for payment, where such Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of such Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency and
prompt notice to the Holders of any such change in the manner specified in
Section 106. If at any time the Company shall fail to maintain any such
required office or agency in respect of Securities of any series, or any Tranche
thereof, or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of such Securities may be made and notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive such respective
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, or any Tranche
thereof, 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 for such purposes in each Place of
Payment for such Securities in accordance with the requirements set forth above.
The Company shall give prompt written notice to the Trustee, and prompt notice
to the Holders in the manner specified in Section 106, of any such designation
or rescission and of any change in the location of any such other office or
agency.
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<PAGE>
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the Company in which
event the Company shall perform all functions to be performed at such office or
agency.
Section 603. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, or interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, prior to each due
date of the principal of and premium, if any, or interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest and (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, 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, that such Paying Agent
shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if, on Securities of such series or Tranche
in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series or Tranche) in the making
of any payment of principal of and premium, if any, or interest, if any, on
the Securities of such series or Tranche; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
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The Company may at any time 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.
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 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 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 payment to the Company, may
at the expense of the Company cause to be mailed, on one occasion only, notice
to such Holder 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
mailing, any unclaimed balance of such money then remaining will be paid to the
Company.
Section 604. Corporate Existence.
-------------------
Subject to the rights of the Company under Article Eleven, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the rights (charter and statutory)
and franchises of the Company; provided, however, that the Company shall not be
required to preserve any such right or franchise if, in the judgment of the
Company, (i) the preservation thereof is no longer desirable in the conduct of
the business of the Company and (ii) the failure to preserve any such right or
franchise will not adversely affect the interests of the Holders of Securities
of any series or Tranche in any material respect.
Section 605. Maintenance of Properties.
-------------------------
The Company shall cause (or, with respect to property owned in common
with others, make reasonable effort to cause) all its properties used or useful
in the conduct of its business to be maintained and kept in good condition,
repair and working order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to 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
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therewith may be properly conducted; provided, however, that nothing in this
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Section shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if, in
the judgment of the Company, such discontinuance (i) is desirable in the conduct
of its business and (ii) will not adversely affect the interests of the Holders
of Securities of any series or Tranche in any material respect.
Section 606. Statement as to Compliance; Notice of Certain Defaults.
------------------------------------------------------
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a brief
certificate, which need not comply with Section 102, from the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, as to the signer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture. For purposes of this
Section 606, such compliance shall be determined without regard to any period of
grace or requirement of notice provided under any of the provisions of this
Indenture. The Company's fiscal year presently ends on September 30 of each
year.
The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, written notice of any event of which the Company's Chairman
of the Board, President, Treasurer or Controller has actual knowledge, which
event is, or after notice or lapse of time or both would become, an Event of
Default pursuant to Section 801.
Section 607. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) any additional covenant or
restrictions specified with respect to the Securities of any series, or any
Tranche thereof, as contemplated in Section 301 if before the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches with respect to which such
covenant or restriction was so specified, considered as one class, shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition and (b) Section 602,
604, 605, 606, 608, 609 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of Securities Outstanding
under this Indenture shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), 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
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of the Trustee in respect of any such term, provision or condition shall remain
in full force and effect.
Section 608. Restriction on Liens.
--------------------
The Company shall not hereafter create, assume, incur or suffer to
exist any mortgage, lien, pledge, charge or encumbrance of any kind, other than
"Excepted Encumbrances," upon any property of the Company, other than "Excepted
Property," whether owned as of the date hereof or hereafter acquired, to secure
indebtedness without effectively providing that the Securities shall be secured
equally and ratably with the indebtedness secured by such mortgage, lien,
pledge, charge or encumbrance. Subject to the next succeeding sentence, the
restriction contained in this section shall not be applicable to nor prevent the
following:
(a) the pledging by the Company of any assets as security for the
payment of any tax, assessment or other similar charge demanded of the
Company by any governmental authority or public body so long as the Company
in good faith contests its liability to pay the same, or as security to be
deposited with any governmental authority or public body for any person at
any time required by law or governmental regulation as a condition to the
transaction of any business or the exercise of any privilege, license or
right;
(b) the pledging by the Company of any assets for the purposes of
securing a stay or discharge or for any other purpose in the course of any
legal proceeding in which the Company or a subsidiary is a party or for the
purpose of obtaining insurance coverage or other surety obligations
providing for securing such stay or discharge in the event such stay or
discharge should be required;
(c) making good faith deposits or providing security in connection
with tenders, redemptions, contracts or leases to which the Company is a
party or deposits for the purpose of terminating obligations under an
indenture;
(d) the pledging by the Company of any assets in connection with the
incurrence of indebtedness (under circumstances not otherwise excepted from
the operation of this Section) in aggregate principal amount not exceeding
five percent (5%) of the assets of the Company as presented in the
financial statements of the Company contained in the most recently filed
report on Form 10-K or 10-Q (or successor forms thereto) filed with the
Commission at the time of such pledge;
(e) liens, pledges, security interests or other encumbrances on
property, shares of stock or indebtedness of any corporation existing at
the time such corporation
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becomes a subsidiary of or is merged into the Company, or existing at the
time of acquisition of such property or stock by the Company;
(f) incurring liens, licenses, pledges, security interests or other
encumbrances (which shall include, without limitation, purchase money
mortgages, conditional sale agreements and other title retention agreements
and leases in the nature of title retention agreements) to secure the
payment of all or any part of the price of acquisition, construction or
improvement of any property or stock acquired by the Company, or to secure
any indebtedness incurred by the Company prior to, at the time of, or
within 180 days after the later of the acquisition or completion of
construction (including any improvements on an existing property) which
secured debt is incurred for the purpose of financing all or any part of
the purchase price thereof or construction or improvements thereon;
provided, however, that in the case of any such acquisition, construction
or improvement, the lien, pledge, security interest or other encumbrance
shall not apply to any property theretofore owned by the Company, other
than, in the case of any such construction or improvement, any theretofore
substantially unimproved real property on which the property or improvement
so constructed is located;
(g) any liens, pledges, security interests or other encumbrances
(which shall include, without limitation, purchase money mortgages,
conditional sale agreements and other title retention agreements and leases
in the nature of title retention agreements) on property of the Company in
favor of the United States of America or any state thereof, or any
department, agency or instrumentality or political subdivision of the
United States of America or any state thereof, or in favor of any other
county or political subdivision thereof, or any department, agency or
instrumentality of such county or political subdivision, to secure partial
progress, installment, advance or other payments pursuant to any contract
or statute or to secure any indebtedness or other obligation (or related
instrument) incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject to such
liens, pledges, security interest or other encumbrances;
(h) any extension, renewal or replacement (or successive extension,
renewal or replacement) in whole or in part of any lien or encumbrance
referred to in clauses (a) through (g) above, provided, however, that the
principal amount of indebtedness secured thereby is not increased and the
extension, renewal or replacement shall be limited to all or part of the
property which secured the indebtedness so extended, renewed or replaced
(plus improvements and construction on such property); or
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(i) the lien granted to the Trustee pursuant to Section 907 hereof
and any substantially equivalent lien granted to the respective trustees
under the indentures for any other debt securities of the Company.
Notwithstanding the foregoing, in no event shall the Company create,
assume, incur or suffer to exist pursuant to the foregoing clauses (a) and
(c)-(i) and any mortgage, lien, pledge, charge or encumbrance on the Capital
Stock of either of the Significant Subsidiaries directly or indirectly owned by
the Company.
Any instrument creating a lien pursuant to the requirements of this
Section shall contain reasonable and customary provisions for the enforcement of
such lien and for the release of, or substitution for, the property subjected to
such lien.
The term "Excepted Encumbrances" as used herein shall mean as of any
---------------------
particular time any of the following:
(i) liens for taxes, assessments or governmental charges not
delinquent and liens for workers' compensation awards and similar
obligations not delinquent and liens for taxes, assessments or governmental
charges delinquent but the validity of which is being contested at the time
by the Company in good faith by appropriate proceedings;
(ii) any liens securing indebtedness existing in or relating to
real estate acquired by the Company for transmission, distribution or
right-of-way purposes, or in connection with its usual operations;
(iii) easements or reservations in any property of the Company
created for the purpose of roads, rights-of-way, railroads, railroad side
tracks, electric lines, pipe lines, sewers, water and gas transmission and
distribution mains, conduits, water rights of states, any subdivision
thereof or others, building and use restrictions and defects of title to,
or leases of, any parts of the property of the Company;
(iv) undetermined liens and charges incidental to current
construction, including mechanics', laborers', materialmen's and similar
liens not delinquent;
(v) any obligations or duties affecting the property of the
Company to any municipality or public authority with respect to any
franchise, grant, license, permit or certificate;
(vi) rights reserved to or vested in any municipality or public
authority to control or regulate any property of the Company or to use such
property in a manner
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which does not materially impair the use of such property for the purposes
for which it is held by the Company;
(vii) any irregularities or deficiencies of title to any rights-
of-way for mains or pipes and/or appurtenances thereto or other
improvements thereon and to any real estate used or to be used primarily
for right of way purposes; and
(viii) leases made, or leases existing on property acquired, in the
ordinary course of business.
The term "Excepted Property" as used herein shall mean (a) cash,
-----------------
bonds, stocks, obligations and other securities (not including Capital Stock
issued by either of the Significant Subsidiaries); (b) choses in action,
accounts receivable, unbilled revenues, judgments and other evidences of
indebtedness and contracts, leases and operating agreements; (c) stock in trade,
merchandise, equipment, apparatus, materials or supplies manufactured or
acquired for the purpose of sale and/or resale in the usual course of business
or consumable in the operation of any of the properties of the Company or held
for the purpose of repairing or replacing (in whole or in part) any rolling
stock, buses, motor coaches, trucks, automobiles or other vehicles or aircraft;
(d) timber, gas, oil, minerals (including without limitation gas reserves and
natural or other gas in underground storage or otherwise), mineral rights and
royalties; (e) materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution, or use in the ordinary course
of its business; (f) office furniture and equipment, tools, rolling stock,
buses, motor coaches, trucks and automobiles and other vehicles and aircraft;
and (g) the Company's franchise to be a corporation.
Section 609. Restrictions on Sale and Lease-Back Transactions. The
------------------------------------------------
Company will not enter into any arrangement with any Person providing for the
lease to the Company of any property of the Company (except for temporary leases
for a term, including any renewal thereof, of not more than three years), which
property has been or is to be sold or transferred by the Company (a "Sale and
Lease-back Transaction") to such Person unless the proceeds of such sale are at
least equal to the fair value of such property and either:
(i) the Company would be entitled, pursuant to the provisions of
Section 608, to create, assume, incur or suffer to exist a mortgage, lien,
pledge, charge or encumbrance of any kind to secure indebtedness on the
property to be leased without equally and ratably securing the Securities;
or
(ii) the Company shall, or in any such case the Company covenants that
it will, within 120 days of the effective date of any such arrangement (or
in the case of clause (a) below, within six months thereafter pursuant to a
firm
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purchase commitment entered into within such 120 day period), apply an
amount not less than the fair value of such property to any one or more of
(a) the optional redemption of Securities issued under the
Indenture in accordance with the provisions of Article Four and the
terms of such Securities to be so redeemed or the purchase and
retirement of Securities as provided pursuant to Article Seven hereof,
or
(b) the payment or other retirement of Funded Debt incurred or
assumed by the Company which ranks pari passu with the Securities
(other than Funded Debt owned by the Company), or
(c) the purchase at not more than the fair value of property by
the Company (other than property of the Company involved in such
sale).
ARTICLE SEVEN
Satisfaction and Discharge
--------------------------
Section 701. Satisfaction and Discharge of Indenture.
---------------------------------------
(a) This Indenture shall upon Company Request cease to be of further
effect (except that Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 914 and this Article Seven shall survive), and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(i) either
(1) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (B)
Securities deemed to have been paid in accordance with Section 702(a))
have been delivered to the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee for
cancellation (other than Securities described in clause (1)(A) above)
shall be deemed to have been paid in accordance with Section 702(a);
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent
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herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
(b) In the event there shall be Securities of two or more series
Outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of all series as to which it is Trustee and if
the other conditions thereto as required herein are met. In the event there
shall be two or more Trustees hereunder, then the effectiveness of each such
instrument from each Trustee hereunder shall be conditioned upon receipt of such
instruments from each other Trustee hereunder.
(c) Upon satisfaction and discharge of this Indenture as provided in
this Section 701, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities other than money and Eligible Obligations held by the
Trustee pursuant to Section 703.
Section 702. Legal and Covenant Defeasance.
-----------------------------
(a) On and after the date the Company shall have fulfilled the
conditions of Section 702(c), it shall be deemed to have paid and discharged the
entire Indebtedness represented by any Security or Securities of any series or
Tranche, or any portion of the principal amount thereof, and satisfied its
obligations under this Indenture with respect thereto (hereinafter, "Legal
Defeasance"). Such Securities shall thereafter be deemed to be "Outstanding"
solely for the purposes of Section 703 hereof and the following provisions of
this Indenture shall survive with respect thereto: (i) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section
702(c), payments in respect of the principal of, premium, if any, and interest
on such Securities when such payments are due, or on the redemption date, as the
case may be, and (ii) the obligations of the Company and the Trustee with
respect to such Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 914 and this Article Seven. The Company may
elect to effect a Legal Defeasance under this Section 702(a) notwithstanding the
prior election to effect a Covenant Defeasance under Section 702(b) with respect
to Securities or portions thereof of the same series or Tranche.
(b) The Company shall be released from its obligations under the
covenants contained in Sections 604 (except with respect to maintaining its
corporate existence), 605, 606, 608 and 609 and Article Eleven with respect to
any Security or Securities of any series or Tranche or any portion of the
principal amount thereof (and under any covenants inserted pursuant to Section
301(u) hereof, in any supplemental indenture,
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Board Resolution or Officers' Certificate establishing such Security), on and
after the date the conditions in Section 702(c) are satisfied (hereinafter,
"Covenant Defeasance"). Such Securities or portions thereof shall thereafter be
deemed not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. In the event of a Covenant Defeasance, 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 covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 801(c) with respect to such
Securities or portions thereof, but, except as specified above, the remainder of
this Indenture and such Securities or portions thereof shall continue to be in
full force and effect.
(c) The following shall be the conditions to any defeasance under this
Section 702:
(i) there shall have been irrevocably deposited with the
Trustee, in trust: (1) money in an amount which shall be sufficient,
or (2) Eligible Obligations, which shall not contain provisions
permitting the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on which when
due, without any regard to reinvestment thereof will provide moneys
which, together with the money, if any, deposited with or held by the
Trustee, shall be sufficient, or (3) a combination of (1) or (2) which
shall be sufficient, to pay when due the principal of and premium, if
any, and interest, if any, due and to become due on such Securities or
portions thereof; provided, however, that (x) in the case of the
-------- -------
provision for payment or redemption of less than all the Securities of
any series or Tranche, such Securities or portions thereof shall have
been selected by the Security Registrar as provided herein and, in the
case of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority shall have
been given by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee and (y) such money or the
proceeds of such Eligible Obligations shall either (i) have been on
deposit with the Trustee for a period of at least 90 days, or (ii) the
Trustee shall have received an Opinion of Counsel reasonably
satisfactory in form to the Trustee to the effect that payments to
Holders with such moneys as proceeds are not recoverable as a
preference under any applicable United States federal
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or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors;
(ii) if such deposit shall have been made prior to the
Maturity of such Securities, the Company shall have delivered to the
Trustee a Company Order stating that the money and Eligible
Obligations deposited with the Trustee in accordance with this Section
shall be held by the Trustee, in trust, as provided in Section 703;
(iii) if Eligible Obligations shall have been deposited with
the Trustee, the Company shall have delivered to the Trustee an
opinion of an independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the requirements
set forth in clause (i) above have been satisfied;
(iv) the Company shall have delivered to the Trustee an
Opinion of Counsel in the form described in Section 702(d); and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein relating to either the Legal Defeasance
under Section 702(a) or the Covenant Defeasance under Section 702(b),
as the case may be, have been complied with.
(d) (i) In the case of Legal Defeasance under Section 702(a), the
Opinion of Counsel referred to in Section 702(c) shall be in a form reasonably
satisfactory to the Trustee and shall be (x) accompanied by a ruling of the
Internal Revenue Service issued to the Company, or (y) based on a change in law
or regulation occurring after the date hereof, to the effect that the Holders
will not realize income, gain or loss for Federal income tax purposes as a
result of such Legal Defeasance but will realize income, gain or loss on the
Securities, including payments of interest thereon, in the same amounts and in
the same manner and at the same time as would have been the case if such Legal
Defeasance had not occurred; and
(ii) In the case of Covenant Defeasance under Section
702(b), the Opinion of Counsel referred to in Section 702(c) shall be
in a form reasonably satisfactory to the Trustee and to the effect
that the Holders will not realize income, gain or loss for Federal
income tax purposes as a result of such Covenant Defeasance but will
realize income, gain or loss on the Securities, including payments of
interest thereon, in the same manner and at the same times as
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would have been the case if such Covenant Defeasance had not occurred.
(e) In the event that the Company effects a Legal Defeasance, upon
receipt by the Trustee of money or Eligible Obligations, or both, in accordance
with Section 702(c), together with the documents required by such paragraph, the
Trustee shall, upon receipt of a Company Request, acknowledge in writing that
the Security or Securities or portions thereof with respect to which such
deposit was made are deemed to have been paid for all purposes of this Indenture
and that the entire indebtedness of the Company in respect thereof is deemed to
have been satisfied and discharged.
(f) If payment of less than all of the Securities of any series, or
any Tranche thereof, is to be provided for in the manner and with the effect
provided in this Section, the Security Registrar shall select such Securities,
or portions of principal amount thereof in the manner specified by Section 403
for selection for redemption of less than all the Securities of a series or
Tranche.
(g) In the event that Securities which shall be deemed to have been
paid as a result of a Legal Defeasance (or with respect to which a Covenant
Defeasance has been effected) do not mature and are not to be redeemed within
the 60-day period commencing with the date of the deposit with the Trustee of
moneys or Eligible Obligations, the Company shall, as promptly as practicable,
give a notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.
(h) The Company shall pay, and shall indemnify the Trustee and each
Holder of Securities which are deemed to have been paid as provided in this
Section against any tax, fee or other charge imposed on or assessed against the
Eligible Obligations deposited with the Trustee or the principal or interest
received by the Trustee in respect of such Eligible Obligations.
(i) Anything herein to the contrary notwithstanding, if, at any time
after a Legal Defeasance or a Covenant Defeasance is effected pursuant to this
Section (without regard to the provisions of this paragraph (i)), the Trustee
shall be required to return the money or Eligible Obligations, or combination
thereof, deposited with it to the Company or its representative under any
applicable Federal or State bankruptcy, insolvency or other similar law, the
indebtedness of the Company in respect of such Security shall thereupon be
deemed retroactively not to have been satisfied and discharged, as aforesaid,
and to remain Outstanding, or, as the case may be, the obligations under the
above-mentioned covenants in respect of such Security shall thereupon be deemed
retroactively not to have been released.
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Section 703. Application of Trust Money.
--------------------------
Neither the Eligible Obligations nor the money deposited with the
Trustee pursuant to Section 702(c)(i), nor the principal or interest payments on
any such Eligible Obligations, shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the principal of and
premium, if any, and interest, if any, on the Securities or portions of
principal amount thereof in respect of which such deposit was made, all subject,
however, to the provisions of Section 603; provided, however, that, so long as
-------- -------
there shall not have occurred and be continuing an Event of Default, any cash
received from such principal or interest payments on such Eligible Obligations
deposited with the Trustee, if not then needed for such purpose, shall, to the
extent practicable, be invested in Eligible Obligations of the type described in
Section 702(c)(i)(2) maturing at such times and in such amounts as shall be
sufficient to pay when due the principal of and premium, if any, and interest,
if any, due and to become due on such Securities or portions thereof on and
prior to the Maturity thereof, and interest earned from such reinvestment shall
be paid over to the Company as received by the Trustee, free and clear of any
trust, lien or pledge under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall not have occurred and
-------- -------
be continuing an Event of Default, any moneys held by the Trustee in accordance
with this Section on the Maturity of all such Securities in excess of the amount
required to pay the principal of and premium, if any, and interest, if any, then
due on such Securities shall be paid over to the Company free and clear of any
trust, lien or pledge under this Indenture except the lien provided by Section
907.
ARTICLE EIGHT
Events of Default; Remedies
---------------------------
Section 801. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(a) failure to pay any interest on any Security of such series within
30 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series within three Business Days after it becomes due; or
(c) failure to perform or breach of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default in the
performance of which or breach of
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which is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of 90 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 principal
amount of the Outstanding Securities of such 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
(d) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company or a Significant Subsidiary
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a decree or
order adjudging the Company or a Significant Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition by one or more Persons other than the
Company or a Significant Subsidiary seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or a Significant
Subsidiary under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
for the Company or a Significant Subsidiary or for any substantial part of its
respective property, or ordering the winding up or liquidation of its affairs,
and any such decree or order for relief or any such other decree or order shall
have remained unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company or a Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization 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 or a
Significant Subsidiary in a case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the consent by it to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or a Significant Subsidiary or of any substantial part of its respective
property, or the making by the Company or a Significant Subsidiary of an
assignment for the benefit of creditors, or the admission by the Company or a
Significant Subsidiary in writing of its inability to pay its debts generally as
they become due, or the authorization of such action by the Board of Directors
of the Company or of a Significant Subsidiary; or
(f) a default under any bond, debenture, note or other evidence of
indebtedness by the Company (including a default with respect to Securities of
any series) or by a Significant
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Subsidiary or a default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness by the Company (including this Indenture) or by a Significant
Subsidiary, in each case aggregating in excess of $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay any portion of the principal of such indebtedness
when due and payable after the expiration of any applicable grace period with
respect thereto or shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, if (1) there shall have 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 10% in principal amount of the Outstanding Securities
of any series a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and (2) within a period of 10 days after said notice is
given to the Company, such indebtedness is not discharged or such acceleration
is not rescinded or annulled; or
(g) any other Event of Default specified with respect to Securities
of such series.
Section 802. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every such
case the Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof as contemplated by Section 301) of all of the Securities of
such 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 receipt by the
Company of such notice of such declaration such principal amount (or specified
amount) shall become immediately due and payable; provided, however, that if an
Event of Default shall have occurred and be continuing with respect to more than
one series of Securities, the Trustee or the Holders of not less than 33% in
aggregate principal amount of the Outstanding Securities of all such series,
considered as one class, may make such declaration of acceleration, and not the
Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such
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declaration of acceleration shall, without further act, be deemed to have been
waived, and such declaration and its consequences shall, without further act, be
deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest on all Securities of any such series;
(2) the principal of and premium, if any, on any Securities of
such 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;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to Securities
of such series, other than the non-payment of the principal of Securities
of such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
Section 803. Collection of Indebtedness and Suits for Enforcement by
Trustee.
-------------------------------------------------------
If any Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Securities of the
series with respect to which such Event of Default shall have occurred, the
whole amount then due and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent required by such Securities and
permitted by law, interest on premium, if any, and on any overdue principal and
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 907.
If the Company shall fail 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
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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 an Event of Default with respect to Securities of any series shall
have occurred and be 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, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 804. 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,
(a) to file and prove a claim for the whole amount of principal,
premium if any, and interest, if any, 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 amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any 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, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due to it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights
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of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 805. 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 or 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 in respect of which such judgment has been
recovered.
Section 806. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if
any, or interest, if any, upon presentation of the Securities in respect of
which or for the benefit of which such money shall have been collected 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
907;
Second: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium, if any, and interest,
if any, respectively; and
Third: To the Company.
Section 807. Limitations on Suits.
--------------------
No Holder 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:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of
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all series in respect of which an Event of Default shall have occurred and
be continuing, considered as one class, shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of a
series in respect of which an Event of Default shall have occurred and be
continuing, considered as one class;
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 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 of such
Holders.
Section 808. 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) interest, if any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 809. 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 shall have been
discontinued or abandoned for any reason, or shall have 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, and Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and
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remedies of the Trustee and such Holder shall continue as though no such
proceeding had been instituted.
Section 810. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided in the last paragraph of Section 306, 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 811. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder 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 812. Control by Holders of Securities.
--------------------------------
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal amount
of the Outstanding Securities of such 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, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of the Securities of
any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's sole
discretion, be adequate;
(b) the Trustee shall not have determined that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction; and
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(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 813. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 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 and
all Events 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 814. Undertaking for Costs.
---------------------
The Company and the Trustee agree, and each Holder 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, suffered 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 shall not apply to any suit instituted by the
Company, 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 aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, 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, on or
after the Redemption Date). This Section 814 shall be in lieu of Section 315(e)
of the Trust Indenture Act and such Section 315(e) is hereby expressly excluded
from this Indenture as permitted by the Trust Indenture Act.
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ARTICLE NINE
The Trustee
-----------
Section 901. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to Securities of any series,
(1) the Trustee undertakes to perform, with respect to Securities
of such series, 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,
with respect to Securities of such series, 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 be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise,
with respect to Securities of such series, 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 man would exercise or use under the
circumstances in the conduct of his 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 wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(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
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Holders of a majority in principal amount of the Outstanding
Securities of any one or more series, as provided herein, 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.
(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.
Section 902. 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 entitled to receive reports pursuant to
Section 1003(c), notice of any default hereunder known to the Trustee, unless
such default shall have been cured and 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 instalment 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 801(c) with respect to Securities of such series, no such
notice to Holders shall be given until at least 75 days after the occurrence
thereof. For the purpose of this Section, 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 903. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 901:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice,
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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 shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any Holder pursuant to this Indenture, unless such Holder 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 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; and
(h) except as otherwise provided in Section 801(d), the Trustee shall
not be charged with knowledge of any Event of Default with respect to the
Securities of any series for
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which it is acting as Trustee unless either (1) a Responsible Officer of
the Trustee assigned to the Corporate Trust Department of the Trustee (or
any successor division or department of the Trustee) shall have actual
knowledge of the Event of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the Company, any other
obligor on such Securities or by any Holder of such Securities.
Section 904. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities of the proceeds thereof, nor shall it
be responsible for any statement in the registration statement or prospectus for
the Securities under the Securities Act of 1933, as amended, or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
Section 905. 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
908 and 913, 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 906. 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. Neither the Trustee nor
the Paying Agent shall be under any liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
Section 907. Compensation and Reimbursement.
------------------------------
The Company shall
(a) pay to the Trustee from time to time 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);
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(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably 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,
wilful misconduct or bad faith; and
(c) indemnify the Trustee and its officers, directors, employees and
agents and hold each of them harmless from and against, any loss, liability
or expense reasonably incurred without negligence, willful misconduct or
bad faith on the part of such indemnified party, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defense against any claim or
liability in connection with the exercise or performance of any of such
indemnified party's powers or duties hereunder.
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 other than
property and funds held in trust under Section 703 except as otherwise provided
in Section 703, and other than the property or funds deposited with the Trustee
pursuant to Section 701. Anything to the contrary notwithstanding, the
obligations of the Company under this Section 907 shall survive payment in full
of the Securities and discharge of this Indenture.
Section 908. Disqualification; Conflicting Interests.
---------------------------------------
(a) If the Trustee shall have or acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest and if
the default (as defined in Section 908(d), to which such conflicting interest
relates has not been cured or duly waived or otherwise eliminated before the end
of such 90-day period, either eliminate such conflicting interest or resign with
respect to the Securities of such series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such 90-
day period, transmit, in the manner and to the extent provided in Section
1003(c), to all Holders of Securities of such series notice of such failure.
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(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series if the
Securities of such series are in default (as such term is defined in Section
801, but exclusive of any period of grace or requirement of notice); and
(1) the Trustee is trustee under this Indenture with respect to
the Outstanding Securities of any series other than such series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Securities issued under this Indenture; provided, however, that there
shall be excluded from the operation of this paragraph of this
Indenture Outstanding Securities of any series other than such series
or any other indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, if
(A) this Indenture and such other indenture or indentures
are wholly unsecured and rank equally and such other indenture or
indentures are hereafter qualified under the Trust Indenture Act,
unless the Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the Trust
Indenture Act that differences exist between the provisions of
this Indenture with respect to Securities of such series and one
or more other series or the provisions of such other indenture or
indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of
such series and such other series or under such other indenture
or indentures, or
(B) the Company shall have sustained the burden of proving,
on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with
respect to the Securities of such series and such other series or
such other indenture or indentures is not so likely to involve a
material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify
the Trustee from acting as such under this Indenture with respect
to the Securities of such series and such other series or under
such other indenture or indentures;
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(2) the Trustee or any of its directors or executive officers is
an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control
with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative of
the Company, or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (A) one individual may be a director and/or an executive
officer, of the Trustee and a director and/or an executive officer of
the Company but may not be at the same time an executive officer of
both the Trustee and the Company; (B) if and so long as the number of
directors of the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer of the
Trustee and a director of the Company; and (C) the Trustee may be
designated by the Company or by any underwriter for the Company to act
in the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of this
Section 908(c) to act as trustee, whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting securities
is beneficially owned, collectively, by any two or more of such
persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), (A) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Securities issued under this Indenture and
securities issued under any other indenture under which the Trustee is
also trustee or (B) 10% or more of any class of security of any
underwriter for the Company;
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(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50%
or more of the voting securities of the Company; or
(9) the Trustee owns, on the date of default upon the Securities
of such series (as such term is defined in Section 801, but exclusive
of any period of grace or requirement of notice) or any anniversary of
such default while such default upon the Securities of such series
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of two years
from the date of such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting securities or
25% of any such class of security. Promptly after the dates of any
such default upon the Securities of such series and annually in each
succeeding year that the Securities of such series remain in default
the Trustee shall make a check of its holdings of such securities in
any of the above-mentioned capacities as of such dates. If the
Company shall fail to make payment in full of the principal of or
premium, if any, or interest, if any, on any of the Securities when
and as the same becomes due and payable, and such failure shall
continue for 30 days thereafter, the Trustee shall make a prompt check
of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested
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in it, shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraph (1),
(3), (4) (5) or (6) of Section 913(b) hereof, the Trustee shall be or
shall become a creditor of the Company.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (a) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (b) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (c) the Trustee shall not be
deemed to be the owner or holder of (1) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (b) above, (2) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder
or (3) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
(d) For the purpose of this Section:
(1) the term "underwriter", when used with reference to the
Company means every person who, within one year prior to the time as
of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers'
commission;
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(2) the term "director" means any director of a corporation or
any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated;
(3) the term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof; and as used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security;
(4) the term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) Except in the case of a default in the payment of the principal of
or interest on any Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 908 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived during a reasonable
period and under the procedures described in such application, and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interest of
the Holders. The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise.
(f) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) a specified percentage of the voting securities of the
Trustee, the Company or any other
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person referred to in this Section (each of whom is referred to as a
"person" in this paragraph) means such amount of the outstanding
voting securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes which
the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of
such person;
(2) a specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding.
(3) the term "amount", when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares and the number of units
if relating to any other kind of security;
(4) the term "outstanding", as used in this Section, means
issued and not held by or for the account of the issuer; the following
securities shall not be deemed outstanding within the meaning of this
definition:
(A) securities of an issuer held in a sinking fund relating
to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as
to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or
interest or otherwise; and
(D) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof; and
(5) a security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all of
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which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
Section 909. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, 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 or
State authority and qualified and eligible under this Article. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No obligor upon the Securities or
person directly or indirectly controlling, controlled by, or under common
control with such obligor shall serve as Trustee. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 910. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptances by a successor Trustee required by Section 911 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 Company may at any time by a Board Resolution remove the
Trustee with respect to the Securities of any or all series.
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(d) 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.
(e) If at any time:
(1) the Trustee shall fail to comply with Section 908(a) after
written request therefor by any Holder who has been a bona fide Holder
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909
and shall fail to resign after written request therefor 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, subject to Section 814, any Holder who has been a bona
fide Holder 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.
(f) 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 911. 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
911, 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
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Company or the Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, subject to Section 814, 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.
(g) 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 911. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trust 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
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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, upon payment of all
sums owed to it, 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 instrument which fully vests in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a) or (b)
of this Section, 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 912. 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 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 thereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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Section 913. Preferential Collection of Claims
Against Company.
---------------------------------
(a) Subject to subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in subsection (c)
of this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders and the holders
of other indenture securities, as defined in subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
clause (2) of this paragraph, or from the exercise of any right of set-off
which the Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee,
(1) to retain for its own account (A) payments made on account of any
such claim by any Person (other that the Company) who is liable thereon,
and (B) the proceeds of the bona fide sale of any such claim by the Trustee
to a third Person and (C) distributions made in cash, securities or other
property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State laws;
(2) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(3) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was
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created after the beginning of such three months' period and such property
was received as security therefor simultaneously with the creation thereof,
and if the Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(4) to receive payment on any claim referred to in clause (2) or (3)
of this paragraph, against the release of any property held as security for
such claim as provided in such clause (2) or (3), as the case may be, to
the extent of the fair value of such property.
For the purposes of clauses (2), (3) and (4) of this paragraph, property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or
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proceedings for reorganization is pending shall have jurisdiction (1) to
apportion among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and proceeds thereof, or (2) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply to the provisions of
this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(1) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three months' period; and
(2) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens of encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
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(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (A) under
which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of this Section and (C) under which
a default exists at the time of the apportionment of the funds and property
held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the
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making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligations;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
Section 914. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State or territory thereof
or the District of Columbia or the Commonwealth of Puerto Rico, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $25,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent 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, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the
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execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder, shall become vested with all
the rights, powers and duties of its predecessor 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.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
--------------------------------
As Trustee
By
------------------------------
As Authenticating Agent
By
-----------------------------
Authorized Signatory
If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance
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located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
by the Company in writing (which writing need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be acceptable
to the Trustee, an Authenticating Agent (which, if so requested by the Company,
may be an Affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
Section 1001. Company to Furnish Trustee Names and
Addresses of Holders.
--------------------
The Company shall furnish or cause to be furnished to the Trustee
(a) semiannually, not later than _____________ 1 and _________ 1, in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Company,
or any of its Paying Agents other than the Trustee, as to the names and
addresses of the Holders as of the preceding ____________ 15 or
___________ 15, 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, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 1002. 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 (1) contained in the most recent
list furnished to the Trustee as provided in Section 1001 and (2) received by
the Trustee in any other capacity. The Trustee may (1) destroy any list
furnished to it as provided in Section 1001 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent (if so
acting) hereunder upon delivering to itself as Trustee, not earlier than
___________ 15 or __________ 15, a list containing the names and addresses of
the Holders obtained from such information since the delivery of the next
previous list, if
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any, and (3) destroy any list delivered to itself as Trustee which was compiled
from information received by it as Paying Agent (if so acting) hereunder upon
the receipt of a new list so delivered.
(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
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 1002(a), or
(2) 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 1002(a), 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 1002(a) 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 by such applicants 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 by such applicants as aforesaid; otherwise the Trustee shall be relieved
of any
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obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
shall be deemed to have agreed 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 1002(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 1002(b).
Section 1003. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with the year
1997, the Trustee shall transmit by mail to the Holders, as provided in
subsection (c) of this Section, a brief report dated as of such May 15 with
respect to the following (but if no event has occurred within such period, no
report need be transmitted):
(1) any change in its eligibility under Section 909 and its
qualifications under Section 908;
(2) the creation of or any material change to a relationship specified
in paragraphs (1) through (10) of Section 908(c);
(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) 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 Section 913(b)(2), (3), (4)
or (6);
(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;
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(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) 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 or the Securities of any series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 902.
(b) The Trustee shall transmit to the Holders, as provided in
subsection (c) of this Section, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (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) Reports pursuant to this Section shall be transmitted by mail,
(1) to all Holders, as their names and addresses appear in the
Security Register; and
(2) except in the case of reports pursuant to subsection (b) of this
Section, to each Holder whose name and address is preserved at the time by
the Trustee, as provided in Section 1002(a).
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 1004. Reports by Company.
------------------
The Company shall:
(a) file with the Trustee, within 45 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
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Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with the 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 Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulation 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
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders, in the manner and to the extent provided in Section
1003(c) with respect to reports pursuant to Section 1003(a), such summaries of
any information, documents and reports required to be filed by the Company
pursuant to paragraphs (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
Section 1101. Company May Consolidate, etc., Only on
Certain Terms.
--------------------------------------
The Company shall not consolidate with or merge into any other
Corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the Corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a 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 Outstanding Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
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(b) immediately after giving effect to such transaction and treating
any indebtedness for borrowed money which becomes an obligation of the
Company as a result of such transaction as having been incurred by the
Company at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company, the Corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such indenture supplemental hereto
complies with this Article and that all conditions precedent herein
provided for relating to such transactions have been complied with.
Section 1102. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Company with or merger by the Company
into any other Corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1101, the successor Corporation formed by such consolidation or
into which the Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
-----------------------
Section 1201. Supplemental Indentures Without Consent
of Holders.
---------------------------------------
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) 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; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities,
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or any Tranche thereof (and if such covenants are to be for the benefit of
less than all Securities, stating that such covenants are expressly being
included solely for the benefit of such series or Tranche) or to surrender
any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all or any
series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall materially and adversely affect the
interests of the Holders of Securities of any series or Tranche, such
change, elimination or addition shall become effective with respect to such
series or Tranche only when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a separate or 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 911(b); or
(h) to provide for the procedures required to permit the Company to
utilize, at its option, a non-certificated system registration for all, or
any series or Tranche of, the Securities; or
(i) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; provided, however, that any such
place is located in New York, New York, Birmingham, Alabama, Chicago,
Illinois, Atlanta, Georgia, Jacksonville, Florida, Charlotte, North
Carolina or Los Angeles, California or in any other city located in the
United States
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of America which has a population of at least 1,000,000 inhabitants; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such other provisions
shall not adversely affect the interests of the Holders of Securities of
any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act shall be amended at any time or times after the date of the
execution and delivery of this Indenture and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the incorporation herein of any additional provisions,
or shall by operation of law be deemed to effect such changes or
incorporate such provisions, this Indenture shall be deemed to have been
amended so as to conform to such amendment to the Trust Indenture Act, and
the Company and the Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more changes to, or
the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof, are required by the Trust Indenture Act to
be contained herein, this Indenture shall be deemed to have been amended to
effect such changes or elimination, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture supplemental
hereto to effect such changes or elimination; or
(z) if, by reason of any such amendment, it shall be no longer
necessary for this Indenture to contain one or more provisions which, at
the date of the execution and delivery hereof, are required by the Trust
Indenture Act to be contained herein, the Company and the Trustee may,
without the consent of any Holders, enter into an indenture supplemental
hereto to effect the elimination of such provisions.
Section 1202. Supplemental Indentures with Consent of
Holders.
---------------------------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and
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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; provided, however, that if
there shall be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Securities of one or more, but less than all, of such series, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
of each series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or any installment
of principal or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any installment of
interest thereon) or any premium payable upon the redemption thereof, or change
the method of calculating the rate of interest thereon, 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 802, or the coin or currency (or other property) 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, on or after the Redemption
Date), or
(b) reduce the percentage in principal amount of the Outstanding
Security of such series or Tranche, 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 any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section 1304 for
quorum or voting, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813, except to increase the percentages in principal amount referred to
in this Section or such other Sections or to provide that 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 to "the Trustee" and concomitant changes in this Section, or
the deletion
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of this proviso, in accordance with the requirements of Sections 911(b) and
1201(g).
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 of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches 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 or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 1203. 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 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
Section 1204. 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. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
Section 1205. 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.
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Section 1206. Reference in Securities to Supplemental
Indentures.
---------------------------------------
Securities of any series, or any Tranche thereof, 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 shall so determine, new Securities of any series, or
any Tranche thereof, 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 or Tranche.
Section 1207. Modification Without Supplemental
Indenture.
---------------------------------
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officers' Certificate pursuant to a
Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or Officers'
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or Officers'
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required to be
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officers' Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
-------------------------------------------
Section 1301. Purposes for Which Meetings
May Be Called.
---------------------------
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
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Section 1302. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at any other place. Notice of
every such meeting setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 33% in aggregate principal amount
of all such series and Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series and Tranches in the
amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Securities of such series or Tranche are present in
person or by proxy and if representatives of the Company and the Trustee are
present, or if notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series or Tranche, or by such of
them as are not present at the meeting in person or by proxy, and by the Company
and the Trustee.
Section 1303. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or Tranches,
or (b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Person entitled
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to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 1304. Quorum; Action.
--------------
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a) not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall constitute
a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
-86-
<PAGE>
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
Section 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings.
-----------------------------------------
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of Securities with respect to which
it was given unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b), in which case the Company
or the Holders of Securities of the series and Tranches calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
-87-
<PAGE>
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting considered as one class; and the
meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of
Meetings.
--------------------------------------
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches with respect
to which the meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 1307. Action Without Meeting.
----------------------
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
by this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
Section 1308. Fixing of Record Date.
---------------------
Anything in this Article to the contrary notwithstanding, the Company
may, but shall not be obliged to, fix a record date for the purpose of
determining the Holders of Securities entitled to attend and vote in person or
by proxy at a meeting of Holders of Securities held pursuant to this Article or
to consent to any modification, alteration or other action. If a record date is
fixed, those persons who were Holders of Securities at the close of business of
the Trustee on such record
-88-
<PAGE>
date (or their duly designated proxies), and only those Persons, shall be
entitled to attend and vote in person or by proxy at a meeting of Holders of
Securities held pursuant to this Article or to consent to such modification,
alteration or other action or to revoke any proxy or consent previously given,
whether or not such Persons continue to be Holders of Securities after such
record date.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
----------------------------------------
Section 1401. Liability Solely Corporate.
--------------------------
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor Corporation (either directly or through the Company or a
predecessor or successor Corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor Corporation, either directly or
indirectly through the Company or any predecessor or successor Corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
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.
-89-
<PAGE>
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.
ENERGEN CORPORATION
By:
--------------------------------------
Name:
Title:
ATTEST:
- ----------------------------------
THE BANK OF NEW YORK, as trustee
By:
--------------------------------------
Name:
Title:
ATTEST:
- ----------------------------------
-90-
<PAGE>
STATE OF _________ )
) SS.:
COUNTY OF ________ )
On the ____ day of _______________, 19___, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is a __________________ of Energen Corporation, one of the
corporations described in and which executed the foregoing instrument; that
(s)he 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 (s)he signed his/her name
thereto by like authority.
-----------------------------------
Notary Public
STATE OF ________ )
) SS.:
COUNTY OF _______ )
On the ____ day of _______________, 19___, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is a __________________ of The Bank of New York, one of the
corporations described in and which executed the foregoing instrument; that
(s)he 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 (s)he signed his/her name
thereto by like authority.
-----------------------------------
Notary Public
-91-
<PAGE>
EXHIBIT 5
August 29, 1996
Energen Corporation
2101 Sixth Avenue North
Birmingham, Alabama 35203
Ladies and Gentlemen:
In our capacity as counsel for Energen Corporation, an Alabama
corporation ("Energen"), we have examined the Registration Statement on Form S-3
(the "Registration Statement"), in the form as proposed to be filed by Energen
on _____________, 1996 with the Securities and Exchange Commission under the
provisions of the Securities Act of 1933, as amended, relating to up to
$250,000,000 of (i) its notes, adebentures or other evidences of unsecured
indebtedness (the "Debt Securities") and (ii) its common stock, par value $.01
per share (the "Common Stock"). The Common Stock and the Debt Securities are
collectively referred to as the "Offered Securities." The Offered Securities are
to be offered by Energen to the public pursuant to the Registration Statement.
In this connection, we have examined such records, documents and proceedings as
we have deemed relevant and necessary as a basis for the opinions expressed
herein.
Upon the basis of the foregoing, we are of the opinion that:
(i) the Debt Securities to be offered under the Registration
Statement, to the extent actually issued by Energen pursuant to the
Selling Agency Agreement described in the Registration Statement (the
"Selling Agency Agreement"), will be duly and validly authorized and
issued, will be fully paid and non-assessable Debt Securities of
Energen, and will constitute legal, valid and binding obligations of
Energen in accordance with their terms;
(ii) the Common Stock to be offered under the Registration
Statement, to the extent actually issued by Energen pursuant to the
Common Stock Underwriting Agreement described in the Registration
Statement (the "Underwriting Agreement"), will be duly and validly
authorized and issued and will be fully paid and nonassessable Common
Stock of Energen; and
(iii) under the laws of the State of Alabama, no personal
liability will attach to the ownership of the Offered Securities of
Energen.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement.
In addition, we hereby consent to the inclusion of the statements made in
reference to our firm under the caption "LEGAL OPINIONS" in the Prospectus which
is a part of the Registration Statement.
Yours very truly,
/s/ Bradley, Arant, Rose & White
<PAGE>
ENERGEN CORPORATION EXHIBIT 12
Computation of Ratio of Earnings to Fixed Charges
(In Thousands, Except for Ratios)
<TABLE>
<CAPTION>
Nine Months Years Ended September 30,
Ended
June 30, 1996 1995 1994 1993 1992 1991
------------- ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Earnings, as defined:
Income from continuing operations
before provision for income taxes . . . . $ 34,467 $ 22,989 $ 30,362 $ 21,489 $ 16,069 $ 14,469
Add:
Interest, net of amounts capitalized (1) . . 9,926 11,818 11,345 10,605 10,415 9,867
Dividends on preferred stock of subsidiary . 0 0 0 70 85 85
---------- ---------- ---------- ---------- ---------- ----------
Total earnings, as defined . . . . . . . . . . $ 44,393 $ 34,807 $ 41,707 $ 32,164 $ 26,569 $ 24,421
========== ========== ========== ========== ========== ==========
Fixed charges, as defined:
Interest (1) . . . . . . . . . . . . . . . . $ 9,926 $ 11,818 $ 11,345 $ 10,605 $ 10,476 $ 10,611
Dividends on preferred stock of subsidiary . 0 0 0 70 85 85
---------- ---------- ---------- ---------- ---------- ----------
Total fixed charges, as defined . . . . . . . $ 9,926 $ 11,818 $ 11,345 $ 10,675 $ 10,561 $ 10,696
========== ========== ========== ========== ========== ==========
Ratio of earnings to fixed charges . . . . . . 4.47 2.95 3.68 3.01 2.52 2.28
========== ========== ========== ========== ========== ==========
</TABLE>
(1) Includes amortization of debt and discount expense.
<PAGE>
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Energen Corporation for the registration of debt securities and
common stock of Energen Corporation of our report, which includes an explanatory
paragraph with respect to the change in Energen's method of accounting for
certain other post retirement benefits effective October 1, 1993, dated October
25, 1995, on our audits of the consolidated financial statements and financial
statement schedules of Energen Corporation as of September 30, 1995 and 1994 and
for the years ended September 30, 1995, 1994 and 1993. We also consent to the
reference to our firm under the caption "Experts."
COOPERS & LYBRAND, L.L.P.
Birmingham, Alabama
August 27, 1996
<PAGE>
STATE OF ALABAMA ) EXHIBIT 24
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
(OMNIBUS SHELF REGISTRATION)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned Officers
and/or Directors of Energen Corporation, whose signatures appear below hereby
constitutes and appoints Rex J. Lysinger, Wm. Michael Warren, Jr., and Geoffrey
C. Ketcham, and each of them, his (her) true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him (her) and
in his (her) name, place and stead, in any and all capacities, to sign a
registration statement of Energen Corporation on Form S-3 relating to the
offering of up to $250,000,000 aggregate amount of debt and/or equity
securities of Energen Corporation, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as (s)he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agents, or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Dated as of the 20th day of August, 1996.
/s/ STEPHEN D. BAN /s/ JUDY M. MERRITT
- ------------------------------ ------------------------------
STEPHEN D. BAN - Director JUDY M. MERRITT - Director
/s/ J. MASON DAVIS, JR. /s/ DRAYTON NABERS, JR.
- ------------------------------ ------------------------------
J. MASON DAVIS, JR. - Director DRAYTON NABERS, JR. - Director
/s/ WALLACE L. LUTHY /s/ GEORGE S. SHIRLEY
- ------------------------------ ------------------------------
WALLACE L. LUTHY - Director GEORGE S. SHIRLEY - Director
/s/ REX J. LYSINGER /s/ JAMES S.M. FRENCH
- ------------------------------ ------------------------------
REX J. LYSINGER - Director, JAMES S.M. FRENCH - Director
Chairman of the Board and CEO
/s/ WM. MICHAEL WARREN, JR. /s/ G.C. KETCHAM
- ------------------------------ ------------------------------
WM. MICHAEL WARREN, JR. G.C. KETCHAM - Executive Vice
Director and President and Chief President, Chief Financial Officer
Operating Officer and Treasurer
<PAGE>
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
13-5160382
(I.R.S. employer identification no.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip Code)
___________________
The Bank of New York
10161 Centurion Parkway
Towermarc Plaza, 2nd Floor
Jacksonville, Florida 32256
Attn: Ms. Sandra Carreker
(904) 998-4716
(Name, address and telephone number of agent for service)
____________________
ENERGEN CORPORATION
(Exact name of obligor as specified in its charter)
Alabama 63-0757759
State or other jurisdiction of (IRS employer
incorporation or organization identification no.)
2101 Sixth Avenue North, Birmingham, Alabama 35203
(Address of principal executive offices) (Zip code)
____________________
Debt Securities
(Title of the indenture securities)
<PAGE>
1. General Information.
-------------------
Furnish the following information as to the trustee--
Name and address of each examining or supervising
authority to which it is subject.
Superintendent of Banks of the State of New York
2 Rector Street
New York, N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York
33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation
Washington, D.C. 20429
New York Clearing House Association
New York, N.Y.
Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
-------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 4.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
(1) A copy of the Organization Certificate of the Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment 1 to Form T-1 filed with
<PAGE>
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
(4) A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
(6) The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration No. 33-44051.)
(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.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the Trustee of
all facts on which to base a responsive answer to Item 2, the answer to said
Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an amendment to
this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Jacksonville and the
State of Florida, on the 20th day of August, 1996.
THE BANK OF NEW YORK
By: /s/ Sandra Carreker
___________________________
Sandra Carreker, Agent
<PAGE>
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, in connection with the proposed issuance of Energen Corporation Debt
Securities, The Bank of New York hereby consents that reports of examinations by
Federal, State, Territorial or District Authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
THE BANK OF NEW YORK
By: /s/ Sandra Carreker
__________________________
Sandra Carreker, Agent
<PAGE>
EXHIBIT 7 TO FORM T-1
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1996, published 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 Thousands
ASSETS
- ------
<S> <C> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin $ 3,650,068
Interest-bearing balances 738,260
Securities:
Held-to-maturity securities 784,969
Available-for-sale securities 2,033,407
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold 3,699,232
Securities purchased under
agreements to resell 20,000
Loans and lease financing receivables:
Loans and leases,
net of unearned income 27,521,958
LESS: Allowance for loan and
lease losses 586,658
LESS: Allocated transfer
risk reserve 429
Loans and leases, net of unearned
income and allowance and reserve 27,521,958
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Assets held in trading accounts 678,844
Premises and fixed assets (including
capitalized leases) 608,217
Other real estate owned 50,599
Investments in unconsolidated
subsidiaries and associated
companies 235,670
Customers' liability to this bank
on acceptances outstanding 904,948
Intangible assets 450,230
Other assets 1,299,464
----------
Total assets $42,675,866
==========
LIABILITIES
- -----------
Deposits:
In domestic offices $19,223,050
Noninterest-bearing 7,675,758
Interest-bearing 11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs 11,527,685
Noninterest-bearing 48,502
Interest-bearing 11,479,183
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased 1,498,351
Securities sold under agreements
to repurchase 126,974
Demand notes issued to the
U.S. Treasury 231,865
Trading liabilities 479,390
Other borrowed money:
With original maturity of one year
or less 2,521,578
With original maturity of more
than one year 20,780
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Bank's liability on acceptances
executed and outstanding 905,850
Subordinated notes and debentures 1,020,400
Other liabilities 1,543,657
----------
Total liabilities 39,099,580
==========
EQUITY CAPITAL
- --------------
Common stock 942,284
Surplus 525,666
Undivided profits and capital
reserves 2,124,231
Net unrealized holding gains (losses)
on available-for-sale securities (8,063)
Cumulative foreign currency
translation adjustments (7,832)
----------
Total equity capital 3,576,286
----------
Total liabilities and equity capital $42,675,866
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
