<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 26, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EQUITABLE RESOURCES, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-0464690
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization) 420 BOULEVARD OF THE ALLIES
PITTSBURGH, PA 15219
(412) 261-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------
JEFFREY C. SWOVELAND
VICE PRESIDENT-FINANCE AND TREASURER
EQUITABLE RESOURCES, INC.
420 BOULEVARD OF THE ALLIES
PITTSBURGH, PA 15219
(412) 553-5770
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
MICHAEL C. MCLEAN, ESQ. ROBERT K. MORRIS, ESQ.
KIRKPATRICK & LOCKHART LLP REED SMITH SHAW & MCCLAY
1500 OLIVER BUILDING 435 SIXTH AVENUE
PITTSBURGH, PA 15222 PITTSBURGH, PA 15219
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time on or after the effective date of this registration statement, as
determined by market conditions.
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. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM OFFERING MAXIMUM
TITLE OF EACH CLASS OF TO BE PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER UNIT(3) OFFERING PRICE(3) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities $168,000,000 100% $168,000,000 $57,932.00
</TABLE>
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(1) Plus such additional principal amount as may be necessary such that, if
Debt Securities are issued with original issue discount, the aggregate
initial offering price of all Debt Securities registered hereunder will
equal $168,000,000.
(2) The Debt Securities offered by the Prospectus included in this
Registration Statement also include $82,000,000 in principal amount of
Debt Securities registered under Registration Statement No. 33-53703 and
included in such Prospectus pursuant to Rule 429.
(3) Estimated solely for the purposes of determining the registration fee.
------------
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
included in this Registration Statement is a combined prospectus relating also
to Registration Statement No. 33-53703. This Registration Statement also
constitutes Post-Effective Amendment No. 1 to Registration Statement No. 33-
53703, and such Post-Effective Amendment shall hereafter become effective
concurrently with the effectiveness of this Registration Statement and in
accordance with Section 8(c) of the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
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>
PROSPECTUS
EQUITABLE RESOURCES, INC.
DEBT SECURITIES
----------------
Equitable Resources, Inc. (the "Company") intends to offer from time to
time, in one or more series, non-convertible, senior, unsecured debt
securities (the "Debt Securities") with an aggregate initial public offering
price or purchase price of up to $250,000,000. The Debt Securities of each
series will be offered on terms to be determined at the time of sale. The
specific terms of the Debt Securities in respect of which this Prospectus is
being delivered, including, where applicable, the designation, aggregate
principal amount, denominations, purchase price, maturity, interest rate
(which may be fixed or variable), if any, time of payment of interest, if any,
any terms for mandatory or optional redemption, any terms for sinking fund
payments, any listing on a securities exchange and any other specific terms in
connection with the sale of those Debt Securities will be set forth in an
accompanying Prospectus Supplement (the "Prospectus Supplement").
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Debt Securities may be offered through agents designated from time to time,
through dealers or through underwriters also to be so designated or directly
to purchasers. See "Plan of Distribution." The names of any such agents,
dealers or underwriters will be set forth in the applicable Prospectus
Supplement.
The date of this Prospectus is June , 1996
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS
OR THE APPLICABLE PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN OR IN THAT PROSPECTUS SUPPLEMENT IS
CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF OR THEREOF OR THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THEREOF. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT CONSTITUTES AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY DEBT SECURITIES IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
The Company, a Pennsylvania corporation, is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy and information
statements and other information with the Securities and Exchange Commission
(the "Commission"), all of which may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Chicago Regional Office, Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and New York Regional Office, 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained upon written request from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
upon payment of prescribed rates. Such material can also be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005, on which exchange the Common Stock of the Company is listed.
This Prospectus does not contain all of the information set forth in the
Registration Statement on Form S-3, of which this Prospectus is a part, and
the exhibits thereto (together with all amendments thereto, the "Registration
Statement"), which the Company has filed with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), certain portions of
which have been omitted pursuant to the rules and regulations of the
Commission, and to which reference is hereby made for further information.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates herein by reference the following documents, which
also have been or will be filed with the Commission:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1995 filed on March 26, 1996, and the Company's Amendment No. 1 to
the Company's Annual Report on Form 10-K/A filed on April 26, 1996;
(b) the Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1996 filed on May 14, 1996;
(c) the Company's Current Report on Form 8-K dated March 21, 1996;
(d) the Company's definitive Proxy Statement dated April 9, 1996 for the
Annual Meeting of Shareholders held on May 23, 1996;
(e) the Company's Registration Statement on Form 8-A registering Preferred
Stock Purchase Rights filed on April 16, 1996; and
(f) all documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date hereof and prior to
the termination of the offering of the Debt Securities.
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<PAGE>
Any statement contained herein, in any Prospectus Supplement or in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of the Registration
Statement and this Prospectus to the extent that a statement contained herein,
in that Prospectus Supplement or in any subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY
OF ANY AND ALL OF THE DOCUMENTS THAT HAVE BEEN OR MAY BE INCORPORATED HEREIN
BY REFERENCE (NOT INCLUDING EXHIBITS TO SUCH DOCUMENTS, UNLESS SUCH EXHIBITS
ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS). REQUESTS
SHOULD BE DIRECTED TO: AUDREY C. MOELLER, VICE PRESIDENT AND CORPORATE
SECRETARY, EQUITABLE RESOURCES, INC., 420 BOULEVARD OF THE ALLIES, PITTSBURGH,
PENNSYLVANIA 15219 (TELEPHONE: (412) 553-5877).
THE COMPANY
The Company is a diversified energy company engaged in the exploration for,
development, production, purchase, transmission, storage, distribution and
marketing of natural gas, the extraction of natural gas liquids, the
exploration for, development, production and sale of oil, contract drilling,
and the marketing of electricity and cogeneration development. The Company's
principal executive office is located at 420 Boulevard of the Allies,
Pittsburgh, Pennsylvania 15219.
USE OF PROCEEDS
Except as set forth in the Prospectus Supplement for any particular series
of Debt Securities, the Company intends to use the net proceeds from the sale
of Debt Securities for general corporate purposes, including working capital,
capital expenditures and the repayment or reduction of outstanding
indebtedness, including commercial paper obligations.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges for the periods indicated.
<TABLE>
<CAPTION>
THREE MONTHS YEARS ENDED DECEMBER 31,
ENDED -------------------------------------------------------------------------
MARCH 31, 1996 1995 1994 1993 1992 1991
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<S> <C> <C> <C> <C> <C>
6.06x .46x 2.37x 3.09x 2.86x 3.30x
</TABLE>
Earnings used to compute the ratio of earnings to fixed charges represent
the aggregate of net income, income taxes and fixed charges. Income taxes
include current and deferred income taxes and amortization of deferred
investment tax credits. Fixed charges consist of interest, including
amortization of debt expense less premium, and one-third of all rental
expenses. Reference is made to Exhibit 12.1 to the Registration Statement of
which this Prospectus is a part for the detailed calculation of the above
ratios.
DESCRIPTION OF THE DEBT SECURITIES
The following is a description of certain general provisions of the Debt
Securities to be offered pursuant to this Prospectus. The particular terms of
the Debt Securities offered pursuant to any Prospectus Supplement (the
"Offered Debt Securities") and the extent, if any, to which such general
provisions may not apply thereto will be described in the Prospectus
Supplement relating to such Offered Debt Securities.
3
<PAGE>
The Debt Securities are to be issued under an Indenture, dated as of June ,
1996, between the Company and Bank of Montreal Trust Company, as Trustee (the
"Trustee").
The following summary of certain provisions of the Debt Securities and the
Indenture does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all of the provisions of the Indenture,
including the definitions therein of certain terms. Whenever particular
provisions of or defined terms in the Indenture are referred to herein, such
provisions or defined terms are incorporated by reference herein. Section
references used herein are references to the Indenture.
GENERAL
The Debt Securities will be senior, unsecured obligations of the Company and
will rank on a parity with all other outstanding unsecured and unsubordinated
indebtedness of the Company.
The Debt Securities of any series will be issued in definitive form or, if
provided in the Prospectus Supplement relating thereto, will be represented in
whole or in part by a Global Security or Securities, which will be deposited
with, or on behalf of, The Depository Trust Company, New York, New York (the
"Depositary"), and registered in the name of the Depositary's nominee. Each
Debt Security represented by a Global Security is referred to herein as a
"Book-Entry Security."
The Indenture does not limit the amount of Debt Securities or of any
particular series of Offered 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.
Reference is made to the Prospectus Supplement relating to the particular
series of Offered Debt Securities offered thereby for the following terms or
additional provisions of the Offered Debt Securities: (i) the title of the
Offered Debt Securities; (ii) any limit on the aggregate principal amount of
the Offered Debt Securities; (iii) the Person to whom any interest on an
Offered Debt Security will be payable, if other than the Person in whose name
that Offered Debt Security is registered; (iv) the date or dates on which the
principal of the Offered Debt Securities will be payable; (v) the rate or
rates (which may be fixed or variable) at which the Offered Debt Securities
will bear interest, if any, or the method of determination of such rate or
rates; (vi) the date or dates from which such interest, if any, on the Offered
Debt Securities will accrue or the method of determination of such date or
dates, the dates on which such interest, if any, will be payable, and the
regular record dates for such interest payment dates, if any; (vii) the place
or places where the principal of and any premium and interest on the Offered
Debt Securities will be payable; (viii) 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 Company; (ix) the obligation, if any, of the Company to redeem or purchase
Offered Debt Securities pursuant to any sinking fund or analogous provisions
or at the option of a Holder, and the periods within which, the price or
prices at which, and the terms and conditions upon which, such Offered Debt
Securities will be so redeemed or purchased; (x) if other than denominations
of $1,000 and any integral multiple thereof, the denominations in which the
Offered Debt Securities will be issuable; (xi) if other than U.S. dollars, the
currency, currencies or currency units in which payment of the principal of
and any premium and interest on the Offered Debt Securities will be payable
and the manner of determining the equivalent thereof in U.S. dollars for
purposes of the definition of "Outstanding" in the Indenture; (xii) if the
amount of payments of principal of or any premium or interest on the Offered
Debt Securities may be determined with reference to an index, the manner in
which such amounts will be determined; (xiii) if the principal of or any
premium or interest on the Offered Debt Securities will be payable, at the
election of the Company or a Holder thereof, in one or more currencies or
currency units other than that in which the Offered Debt Securities are stated
to be payable, the currency, currencies or currency units in which those
payments will be payable, and the periods within which and the terms and
conditions upon which such election is to be made; (xiv) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Debt Securities which will be payable upon declaration of acceleration of the
maturity thereof; and (xv) any other terms of the series (which will not be
inconsistent with the provisions of the Indenture, except as otherwise
permitted). (Section 301)
4
<PAGE>
Unless otherwise provided and except with respect to Book-Entry Securities,
principal of and premium, if any, and interest, if any, on Debt Securities
will be payable, and the transfer of Debt Securities will be registrable, at
the Corporate Trust Office of the Trustee, except that, at the option of the
Company, interest may be paid by mailing a check to, or by wire transfer to,
the Holders entitled thereto. (Sections 301 and 305)
For a description of payments of principal of, and premium, if any, and
interest on, and transfer of, Book-Entry Securities, and exchanges of Global
Securities representing Book-Entry Securities, see "Book-Entry Securities."
Unless otherwise indicated in the Prospectus Supplement relating thereto and
except with respect to Book-Entry Securities, Debt Securities will be issued
only in fully registered form without coupons and only in denominations of
$1,000 and any integral multiple thereof. No service charge will be made for
any registration of transfer or exchange of Debt Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Sections 302 and 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount Securities will
be described in the Prospectus Supplement relating thereto. "Original Issue
Discount Security" means any Debt 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. (Section 101)
CERTAIN COVENANTS OF THE COMPANY
Restriction on Liens
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to, issue, assume or guarantee any Debt which is secured
by a mortgage, pledge, security interest or lien (any mortgage, pledge,
security interest or lien being hereinafter referred to as a "lien" or
"liens") upon any Principal Property of the Company or of any Restricted
Subsidiary or upon any shares of stock or Debt issued by any Restricted
Subsidiary, whether now owned or hereafter acquired, without effectively
providing that the Debt Securities entitled to the benefits of this covenant
(together with, if the Company so determines, any other indebtedness of or
guaranty by the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinated to the Debt Securities) will be
secured equally and ratably with (or at the Company's option, prior to) such
secured Debt so long as such Debt is so secured; provided, however, that the
foregoing will not restrict or apply to Debt secured by (a) liens on property
of, or shares of stock or Debt issued by, any Subsidiary existing at the time
such Subsidiary becomes a Restricted Subsidiary; provided, that such lien has
not been incurred in connection with the transfer by the Company or a
Restricted Subsidiary of a Principal Property to such Subsidiary unless the
Company, within 180 days of the effective date of such transfer, applies or
causes a Restricted Subsidiary to apply an amount equal to the fair value, as
determined by the Board of Directors, of such Principal Property at the time
of such transfer, to the retirement of Debt Securities or other Debt of the
Company (other than Debt subordinated to the Debt Securities), or Debt of any
Restricted Subsidiary (other than Debt owed to the Company or any Restricted
Subsidiary), having a stated maturity (i) more than 12 months from the date of
such application or (ii) which is extendable at the option of the obligor
thereon to a date more than 12 months from the date of such applications; (b)
liens on any property or shares of stock or Debt existing at the time of
acquisition thereof by the Company or a Restricted Subsidiary, or liens to
secure the payment of all or any part of the purchase price or construction
cost thereof or to secure any Debt incurred prior to, at the time of, or
within 180 days after, the acquisition of such property, shares of stock or
Debt or the completion of any such construction, whichever is later, for the
purpose of financing all or any part of the purchase price or construction
cost thereof; (c) liens on any property to secure all or any part of the cost
of development, construction, alteration, repair or improvement of all or any
part of such property, or to secure Debt incurred prior to, at the time of, or
within 180 days after, the completion of such development, construction,
alteration, repair or improvement, whichever is later, for the purpose of
financing all or any part of such cost; (d) liens which secure
5
<PAGE>
Debt owing by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary or by the Company to a Restricted Subsidiary so long as the Debt is
held by the Company or a Restricted Subsidiary; (e) liens securing Debt of a
corporation or other Person which becomes a successor of the Company in
accordance with the terms of the Indenture other than Debt incurred by such
corporation or other Person in connection with a consolidation, merger or sale
of assets in accordance with the terms of the Indenture; (f) liens on property
of the Company or a Restricted Subsidiary in favor of the United States or any
state thereof, or any department, agency or instrumentality or political
subdivision of the United States or any state thereof, or in favor of any
other country or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute or to
secure any Indebtedness incurred or guaranteed for the purpose of financing
all or any part of the purchase price or the cost of construction, alteration,
repair or improvement of the property subject to such liens (including, but
not limited to, liens incurred in connection with pollution control,
industrial revenue or similar financing), or in favor of any trustee or
mortgagee for the benefit of holders of indebtedness of any such entity
incurred for any such purpose; (g) liens securing Debt which is payable, both
with respect to principal and interest, solely out of the proceeds of oil,
gas, coal or other minerals to be produced from the property subject thereto
and to be sold or delivered by the Company or a Subsidiary, including any
interest of the character commonly referred to as a "production payment"; (h)
liens created or assumed by a Subsidiary on oil, gas, coal or other mineral
property, owned or leased by a Subsidiary, to secure Debt of such Subsidiary
for the purpose of developing such property, including any interest of the
character commonly referred to as a "production payment"; provided, however,
that neither the Company nor any Subsidiary shall assume or guarantee such
Debt or otherwise be liable in respect thereof; (i) any extension, renewal or
replacement (or successive extensions, renewals or replacements), in whole or
in part, of any lien referred to in the foregoing clauses (a) to (h),
inclusive, or of any Debt secured thereby; provided, that such extension,
renewal or replacement lien is limited to all or any part of the same property
that secured the lien extended, renewed or replaced (plus any improvements and
construction on such property) and will secure at the time of such extension,
renewal or replacement no larger amount of Debt and, in the case of clause
(d), that the Debt being secured thereby is being secured for the same type of
Person as the Debt being replaced; and (j) liens not permitted by clauses (a)
through (i) above if at the time incurring such lien, the aggregate amount of
the related Debt plus all other Debt of the Company and its Restricted
Subsidiaries secured by liens which would otherwise be subject to the
foregoing restrictions after giving effect to the retirement of any Debt which
is currently being retired (not including Debt permitted to be secured under
clauses (a) through (i) above), plus the aggregate Attributable Debt
(determined as of the time of incurring such lien) of Sale and Leaseback
Transactions (other than Sale and Leaseback Transactions permitted by
subsections (a) and (b) of Section 1005 of the Indenture) entered into after
June , 1996 and in existence at time of incurring such lien (less the
aggregate amount of proceeds of such Sale and Leaseback Transactions which has
been applied in accordance with subsection (c) of Section 1005 of the
Indenture), does not exceed 10% of Consolidated Net Tangible Assets. (Section
1004)
Restriction on Sale and Leaseback Transactions
The Indenture further provides that the Company will not, and will not
permit any Restricted Subsidiary to, enter into any arrangement after June ,
1996 with any bank, insurance company or other lender or investor (other than
the Company or another Restricted Subsidiary) providing for the leasing as
lessee by the Company or a Restricted Subsidiary of any Principal Property
(except a lease for a term not to exceed three years by the end of which term
it is intended that the use of such Principal Property by the lessee will be
discontinued and a lease which secures or relates to industrial revenue or
pollution control bonds or similar financing), which was or is owned by the
Company or a Restricted Subsidiary and which has been or is to be sold or
transferred by the Company or a Restricted Subsidiary to such Person more than
180 days after the completion of construction and commencement of full
operation of such property by the Company or such Restricted Subsidiary, to
such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal Property
(herein referred to as a "Sale and Leaseback Transaction"), unless (a) the
Company or such Restricted Subsidiary would, at the time of entering into such
Sale and Leaseback Transaction, be entitled as described in clauses (a)
through (i) set forth under "Restrictions on Liens" above, without equally and
ratably securing the Debt Securities to issue, assume or guarantee Debt
secured by a lien on such Principal
6
<PAGE>
Property in the amount of the Attributable Debt arising from such Sale and
Leaseback Transaction without equally and ratably securing the Debt Securities
pursuant to the Indenture; or (b) the Attributable Debt of the Company and its
Restricted Subsidiaries in respect of such Sale and Leaseback Transaction and
all other Sale and Leaseback Transactions entered into after June , 1996
(other than such Sale and Leaseback Transactions as are permitted as described
in clause (a) above or clause (c) below), plus the aggregate principal amount
of Debt secured by liens on Principal Properties then outstanding (not
including any such Debt secured by liens described in clauses (a) through (i)
set forth under "Restrictions on Liens" above) which do not equally and
ratably secure the Debt Securities, would not exceed 10% of Consolidated Net
Tangible Assets; or (c) the Company, within 180 days after any such sale or
transfer, applies or causes a Restricted Subsidiary to apply an amount equal
to the greater of the net proceeds of such sale or transfer or the fair value,
as determined by the Board of Directors, of the Principal Property so sold and
leased back at the time of entering into such Sale and Leaseback Transaction
to the retirement of Debt Securities or other Debt of the Company (other than
Debt subordinated to the Debt Securities), or Debt of any Restricted
Subsidiary (other than Debt owed to the Company or any Restricted Subsidiary),
having a stated maturity (i) more than 12 months from the date of such
application or (ii) which is extendable at the option of the obligor thereon
to a date more than 12 months from the date of such application; provided,
that the amount to be so applied will be reduced by (x) the principal amount
of Debt Securities delivered to the Trustee for retirement and cancellation
within 180 days after such sale or transfer, and (y) the principal amount of
any such Debt of the Company or a Restricted Subsidiary other than Debt
Securities voluntarily retired by the Company or a Restricted Subsidiary
within 180 days after such sale or transfer. Notwithstanding the foregoing, no
retirement referred to in clause (c) of the preceding sentence may be effected
by payment at Maturity. (Section 1005)
Certain Definitions (Section 101)
"Attributable Debt" in respect of a Sale and Leaseback Transaction means, as
of any particular time, the present value (discounted at the rate of interest
implicit in the terms of the lease involved in such Sale and Leaseback
Transaction, as determined in good faith by the Company) of the obligation of
the lessee thereunder for net rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, services, insurance,
taxes, assessments, water rates or similar charges and any amounts required to
be paid by such lessee thereunder contingent upon monetary inflation or the
amount of sales, maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges) during the remaining term of such lease (including
any period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Consolidated Net Tangible Assets" means the aggregate amount of assets of
the Company and its consolidated subsidiaries (less applicable reserves) after
deducting therefrom (a) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles and (b) all
current liabilities except for current maturities of long-term debt, current
maturities of capitalized lease obligations, indebtedness for borrowed money
having a maturity of less than 12 months from the date of the most recent
audited consolidated balance sheet of the Company, but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower, and deferred income taxes which are classified as current
liabilities, all as reflected in the audited consolidated balance sheet
contained in the Company's most recent annual report to its shareholders under
Rule 14a-3 of the Exchange Act, prior to the time as of which "Consolidated
Net Tangible Assets" is being determined.
"Debt" means indebtedness for borrowed money.
"Person" means, except as provided in Article Six of the Indenture, any
individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal Property" means any manufacturing plant or production,
transportation or marketing facility or other similar facility located within
the United States (other than its territories and possessions) and owned by,
or leased to, the Company or any Restricted Subsidiary, the book value of the
real property, plant and equipment
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of which (as shown, without deduction of any depreciation reserves, on the
books of the owner or owners) is not less than 1.5% of Consolidated Net
Tangible Assets as of the date on which such facility is acquired or a
leasehold interest therein is acquired.
"Restricted Subsidiary" means any Subsidiary substantially all the property
of which is located, or substantially all the business of which is carried on,
within the United States (other than its territories and possessions) which
shall at the time, directly or indirectly, through one or more Subsidiaries or
in combination with one or more other Subsidiaries or the Company, own or be a
lessee of a Principal Property.
"Subsidiary" means, with respect to the Company, a corporation of which more
than 50% of the total voting power of the capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of its
directors is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries or by the Company and one or more other Subsidiaries.
EVENTS OF DEFAULT
An Event of Default with respect to the Debt Securities of any series is
defined in the Indenture as: (a) default in payment of interest on any Debt
Security of that series, which continues for 30 days; (b) default in payment
of principal of or premium, if any, on any Debt Security of that series at
maturity; (c) default in the deposit of any sinking fund payment when due in
respect of that series; (d) default in the performance or breach of any other
covenant of the Company in the Indenture (other than a default in the
performance or breach of a covenant included in the Indenture solely for the
benefit of a series of Debt Securities other than that series), which
continues for 60 days after due notice (as described in the Indenture) by the
Trustee or by Holders of at least 10% in principal amount of the Outstanding
Debt Securities of that series; (e) default under any bond, debenture, note or
other evidence of indebtedness for money borrowed by the Company (including a
default with respect to Debt Securities of any series other than that series)
or any Subsidiary in an aggregate principal amount of at least $25,000,000 or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed
by the Company (including the Indenture) or any Subsidiary in an aggregate
principal amount of at least $25,000,000, whether such indebtedness now exists
or hereafter is created, which default constitutes 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 has 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, without such
acceleration having been rescinded or annulled, or such indebtedness having
been discharged, within a period of 30 days after 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 that series, a written notice specifying such
default and requiring the Company to cause such acceleration to be rescinded
or annulled or such indebtedness to be discharged and stating that such notice
is a Notice of Default under the Indenture; provided, however, that, subject
to the provisions of Sections 601 and 602 of the Indenture, the Trustee will
not be deemed to have knowledge of such default unless either (i) a
responsible officer of the Trustee has actual knowledge of such default or
(ii) the Trustee has received written notice of such default from the Company,
from any Holder, from the holder of any such indebtedness or from the trustee
under any such mortgage, indenture or other instrument; (f) certain events of
bankruptcy, insolvency or reorganization of the Company; and (g) any other
Event of Default provided with respect to Debt Securities of that series.
(Section 501)
The Indenture provides that, if any Event of Default with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal
amount (or, if any of the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Debt
Securities as may be specified in the terms thereof) of (and all accrued and
unpaid interest on) all Debt Securities of that series to be due and payable
immediately, but under certain conditions such declaration may be rescinded
and annulled and past defaults (except, unless theretofore cured, a default in
payment of principal of or premium, if any, or interest, if any, on the Debt
Securities of that series and certain other specified defaults) may be waived
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<PAGE>
by the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of that series on behalf of the Holders of all
Debt Securities of that series. (Sections 502 and 513)
The Indenture provides that if a default occurs under the Indenture with
respect to Debt Securities of any series at the time Outstanding, the Trustee
will give the Holders of the Outstanding Debt Securities of that series notice
of such default as and to the extent provided by the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); provided, however, that such
notice will not be given with respect to Outstanding Debt Securities of any
series until at least 30 days after the occurrence of that default if that
default is in the performance of a covenant in the Indenture other than for
the payment of the principal of or premium, if any, or interest on any Debt
Security of such series or the deposit of any sinking fund payment with
respect to the Debt Securities of such series. For the purpose of the
provision described in this paragraph, the term default with respect to any
series of Outstanding Debt Securities means any event which is, or after
notice or lapse of time or both would become, an "Event of Default" specified
in the Indenture with respect to Debt Securities of such series. (Section 602)
The Indenture contains a provision entitling the Trustee to be indemnified
by the Holders of any series of Outstanding Debt Securities before proceeding
to exercise any right or power vested in it under the Indenture at the request
or direction of the Holders of such series of Debt Securities. (Section 603)
The Trustee is required, during a default, to act with the standard of care
provided in the Trust Indenture Act. (Section 601) The Indenture provides that
the Holders of a majority in principal amount of Outstanding Debt Securities
of any series may 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 such
series; provided, that the Trustee may decline to act if: (a) such direction
is contrary to law or the Indenture; (b) the Trustee in good faith determines
that the action so directed would involve the Trustee in personal liability
for which it has not been adequately indemnified or would be unduly
prejudicial to Holders not joining in such direction. (Section 512)
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate concerning its compliance with the Indenture.
(Section 1009)
MODIFICATION OF THE INDENTURE AND WAIVER OF COVENANTS
Modifications and amendments may be made by the Company and the Trustee to
the Indenture, without the consent of any Holder of any Debt Security of any
series, to add covenants and Events of Default, and to make provisions with
respect to other matters and issues arising under the Indenture, provided that
any such provision does not adversely affect the rights of the Holders of Debt
Securities of any series in any material respect. (Section 901)
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than 66 2/3% in principal amount
of Outstanding Debt Securities of each series affected thereby, to execute
supplemental indentures adding any provisions to or changing or eliminating
any of the provisions of the Indenture or modifying the rights of the Holders
of Outstanding Debt Securities of such series, except that no such
supplemental indenture 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 of or interest on, any Debt
Security, or reduce the principal amount thereof, the premium, if any, thereon
or the rate of interest thereon, of any Debt Security of any series, (b)
reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of the Holders of which is required for any
supplemental indenture or for waiver of compliance with certain provisions of
the Indenture or certain defaults thereunder or (c) effect certain other
changes. (Section 902) The Indenture also permits the Company to omit
compliance with certain covenants in the Indenture with respect to the Debt
Securities of any series upon waiver by the Holders of not less than 66 2/3%
in principal amount of Outstanding Debt Securities of such series. (Section
1010)
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CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person and the Company may not permit any Person to
consolidate with or merge into the Company, unless: (a) in case the Company
consolidates with or merges into another Person or conveys, transfers or
leases its properties and assets substantially as an entirety to any Person,
the Person 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 is a
corporation, partnership or trust, organized and validly existing under the
laws of the United States, any state thereof or the District of Columbia and
expressly assumes the Company's obligations on the Outstanding Debt Securities
and under the Indenture; (b) immediately after giving effect to such
transaction and treating any indebtedness which is an obligation of the
successor Person or becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary 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, would have happened and be continuing; (c) if, as a result of any
such consolidation or merger or such conveyance, transfer or lease, properties
or assets of the Company would become subject to a lien which would not be
permitted by the Indenture, the Company or such successor Person, as the case
may be, takes such steps as are necessary effectively to secure the Debt
Securities equally and ratably with (or prior to) all indebtedness secured
thereby; and (d) the Company delivers to the Trustee an officers' certificate
and an opinion of counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with the transaction, such supplemental indenture comply with the
Indenture and that all conditions precedent in the Indenture provided for
relating to such transaction have been complied with.
BOOK-ENTRY SECURITIES
The following description of Book-Entry Securities will apply to any series
of Debt Securities issued in whole or in part in the form of a Global Security
or Securities except as otherwise provided in the Prospectus Supplement
relating thereto.
Upon issuance, all Book-Entry Securities of like tenor and having the same
date of original issue will be represented by one or more Global Securities.
Each Global Security representing Book Entry Securities will be deposited
with, or on behalf of, the Depositary, which will be a clearing agent
registered under the Exchange Act. The Global Security will be registered in
the name of the Depositary or a nominee of the Depositary.
Ownership of beneficial interests in a Global Security representing Book-
Entry Securities will be limited to institutions that have accounts with the
Depositary or its nominee ("participants") or persons that may hold beneficial
interests through participants. In addition, ownership of beneficial interests
by participants in such a Global Security only will be evidenced by, and the
transfer of those ownership interests only will be effected through, records
maintained by the Depositary or its nominee for such Global Security.
Ownership of beneficial interests in such a Global Security by persons that
hold through participants only will be evidenced by, and the transfer of those
ownership interests within such participant only will be effected through,
records maintained by such participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to transfer
beneficial interests in such a Global Security.
Payment of principal of and any premium and interest on Book-Entry
Securities represented by a Global Security registered in the name of or held
by the Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner and holder of the Global
Security representing such Book-Entry Securities. None of the Company, the
Trustee or any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the Depositary's records or any
participant's records relating to, or payments made on account of, beneficial
ownership interests in a Global Security representing such Book-Entry
Securities or for maintaining, supervising or reviewing any of the
Depositary's records or any participant's
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records relating to such beneficial ownership interests. Payments by
participants to owners of beneficial interests in a Global Security held
through such participants will be governed by the Depositary's procedures, as
is now the case with securities held for the accounts of customers registered
in "street name," and will be the sole responsibility of such participants.
No Global Security described above may be transferred except as a whole by
the Depositary for such Global Security to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee of the Depositary to a
successor Depositary or a nominee of such successor Depositary.
A Global Security representing Book-Entry Securities is exchangeable for
definitive Debt Securities in registered form, of like tenor and of an equal
aggregate principal amount, if (a) the Depositary notifies the Company that it
is unwilling or unable to continue as depositary for such Global Security or
if at any time the Depositary ceases to be a clearing agency registered under
the Exchange Act, (b) the Company in its sole discretion determines that such
Global Security shall be exchangeable for definitive Debt Securities in
registered form or (c) there shall have occurred and be continuing an Event of
Default with respect to the Debt Securities of such series. Any Global
Security that is exchangeable pursuant to the preceding sentence will be
exchangeable in whole for definitive Debt Securities in registered form, of
like tenor and of an equal aggregate principal amount, and, unless otherwise
specified in the Prospectus Supplement relating thereto, in denominations of
$1,000 and integral multiples thereof. Such definitive Debt Securities will be
registered in the name or names of such person or persons as the Depositary
instructs the Trustee. It is expected that such instructions may be based upon
directions received by the Depositary from its participants with respect to
ownership of beneficial interests in such Global Security.
Except as provided above, owners of beneficial interests in a Global
Security will not be entitled to receive physical delivery of Debt Securities
in definitive form and will not be considered the Holders thereof for any
purpose under the Indenture and no Global Security representing Book-Entry
Securities will be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of the Depositary or its
nominee. Accordingly, each person owning a beneficial interest in a Global
Security must rely on the procedures of the Depositary and, if such person is
not a participant, on the procedures of the participant through which such
person owns its interest, to exercise any rights of a Holder under the
Indenture. The Company understands that under existing industry practices in
the event that the Company requests any action of Holders or an owner of a
beneficial interest in such Global Security desires to give or take any action
that a Holder is entitled to give or take under the Indenture, the Depositary
would authorize the participants holding the relevant beneficial interests to
give or take such action, and such participants would authorize beneficial
owners owning through such participants to give or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
DISCHARGE OR DEFEASANCE OF DEBT SECURITIES IN CERTAIN CIRCUMSTANCES
Defeasance and Discharge. The Indenture will cease to be of further effect
(except as to any surviving rights for the registration of the transfer or
exchange of Debt Securities expressly provided for in the Indenture) if: (a)
all Outstanding Debt Securities (other than destroyed, lost or stolen Debt
Securities which have been replaced or paid and Debt Securities, the payment
for which has been held in trust and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for
cancellation or (b) (1) all Debt Securities not previously delivered to the
Trustee for cancellation have become due and payable or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee and (2) the
Company has deposited with the Trustee, as trust funds, an amount sufficient
to pay and discharge the entire indebtedness on the Outstanding Debt
Securities for principal and any premium and interest to the date of such
deposit or to maturity or redemption, as the case may be. Such trust may only
be established if (a) the Company has paid or caused to be paid all other sums
payable by the Company under the Indenture and (b) the Company has delivered
to the Trustee an officers' certificate and an
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opinion of counsel, each stating that all conditions precedent provided for in
the Indenture relating to the satisfaction and discharge of the Indenture have
been complied with.
The Indenture provides that the terms of any series of Debt Securities may
provide the Company with the option to discharge its indebtedness represented
by such series of Debt Securities or to cease to be obligated to comply with
certain covenants under the Indenture. The Company, in order to exercise such
option, will be required to deposit with the Trustee money and/or U.S.
Government Obligations which, through the payment of interest and principal in
respect thereof in accordance with their terms, will provide money in an
amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification delivered
to the Trustee, to pay the principal of and premium, if any, and interest on,
and any mandatory sinking fund payments in respect of, the Debt Securities of
such series at the stated maturity of such payments in accordance with the
terms of the Indenture and such Debt Securities. Such trust may only be
established if (a) in the case of Debt Securities of any series which are then
listed on the New York Stock Exchange, the Company has delivered to the
Trustee an opinion of counsel, stating that the Company's exercise of this
defeasance option will not cause the Debt Securities to be delisted; (b) no
Event of Default or event (including such deposit in trust) that with notice
or lapse of time or both would become an Event of Default with respect to Debt
Securities of a series has occurred and is continuing on the date of such
deposit; (c) the Company has delivered to the Trustee (1) an opinion of
counsel, stating that the Holders of Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
the Company's exercise of this defeasance option and will be subject to
Federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if the Company had not exercised this option
and (2) in the case of Debt Securities of such series being discharged, either
a private letter ruling to that effect received from the U.S. Internal Revenue
Service (the "IRS") or a revenue ruling pertaining to a comparable form of
transaction to that effect published by the IRS or evidence of a change in
applicable Federal income tax law occurring after the date of the Indenture;
and (d) if the Company is to be discharged with respect to Debt Securities of
such series, no Event of Default or event that with notice or lapse of time or
both would become an Event of Default with respect to Debt Securities of such
series has occurred and is continuing at any time during the period ending on
the 123rd day after the date of deposit by the Company. (Section 1302) In the
event the Company exercises this option and the Debt Securities of a series
are declared due and payable because of the occurrence of any Event of
Default, the amount of money and U.S. Government Obligations, as the case may
be, on deposit with the Trustee will be sufficient to pay the amounts due on
the Debt Securities of a series at the time of their maturity but may not be
sufficient to pay the amounts due on the Debt Securities of such series at the
time of the acceleration resulting from such Event of Default. However, the
Company will remain liable for such payments.
TRUSTEE
The Trustee may resign or be removed with respect to one or more series of
Debt Securities and a successor Trustee may be appointed to act with respect
to such series. (Section 610) In the event that two or more persons are acting
as trustee with respect to different series of Debt Securities, each such
Trustee will be a trustee of a trust under the Indenture separate and apart
from the trust administered by any other such Trustee (Section 611), and any
action described herein to be taken by the "Trustee" may then be taken by each
such Trustee with respect to, and only with respect to, the one or more series
of Securities for which it is Trustee.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in any of four
ways: (i) through agents, (ii) through underwriters, (iii) through dealers or
(iv) directly to purchasers.
Offers to purchase Debt Securities may be solicited directly by the Company
or by agents designated by the Company from time to time. Any such agent, who
may be deemed to be an underwriter as that term is defined in the Securities
Act, involved in the offer or sale of Debt Securities in respect of which this
Prospectus is being delivered, will be named, and any commissions payable by
the Company to such agent will be set forth, in the
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applicable Prospectus Supplement. Unless otherwise indicated in that
Prospectus Supplement, any such agent will be acting on a reasonable efforts
basis for the period of its appointment. The Company will have the sole right
to accept offers to purchase Debt Securities and may reject any proposed offer
in whole or in part. Any such agent will have the right, in its sole
discretion, to reject any offer received by it to purchase Debt Securities in
whole or in part. Agents may be entitled under agreements which may be entered
into with the Company to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of Debt
Securities in respect of which this Prospectus is being delivered, the Company
will execute an underwriting agreement with such underwriters at the time of
the sale to them and the names of the underwriters and the terms of the
transaction will be set forth in the applicable Prospectus Supplement, which
will be used by the underwriters to make resales of Debt Securities in respect
of which this Prospectus is being delivered to the public. The underwriters
may be entitled, under the relevant underwriting agreement, to indemnification
by the Company against certain liabilities, including liabilities under the
Securities Act.
If a dealer is utilized in the sale of Debt Securities in respect of which
this Prospectus is being delivered, the Company will sell such Debt Securities
to the dealer, as principal. The dealer may then resell such Debt Securities
to the public at varying prices to be determined by such dealer at the time of
resale. Dealers may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act.
If the Company offers and sells directly to a purchaser or purchasers Debt
Securities in respect of which this Prospectus is being delivered and such
purchasers are involved in the reoffer or resale of such Debt Securities, then
such purchasers in respect thereof may be deemed to be underwriters as that
term is defined in the Securities Act and will be named and the terms of such
reoffers or resales will be set forth in a Prospectus Supplement. Such
purchasers may then reoffer and resell such Debt Securities to the public or
otherwise at varying prices to be determined by such purchasers at the time of
resale or as otherwise described in the applicable Prospectus Supplement.
Purchasers of Debt Securities directly from the Company may be entitled under
agreements which they may enter into with the Company to indemnification by
the Company against certain liabilities, including liabilities under the
Securities Act, and may engage in transactions with or perform services for
the Company in the ordinary course of their business or otherwise.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is being delivered will be as set forth in the applicable
Prospectus Supplement.
EXPERTS
The consolidated financial statements of the Company at December 31, 1995
and 1994, and for each of the three years in the period ended December 31,
1995, incorporated by reference in this Prospectus and the Registration
Statement have been audited by Ernst & Young LLP, independent auditors, to the
extent indicated in their report thereon incorporated by reference. Such
consolidated financial statements have been incorporated herein and therein in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
VALIDITY OF THE DEBT SECURITIES
The validity of the Debt Securities offered hereby will be passed upon for
the Company by Augustine A. Mazzei, Jr., Esq., the Company's Senior Vice
President and Chief Legal Officer, and by Reed Smith Shaw & McClay,
Pittsburgh, Pennsylvania, counsel to the Company. On June 17, 1996, Mr. Mazzei
beneficially owned 13,468 shares of the Company's common stock and held stock
options to purchase an additional 18,500 shares of such stock. Certain legal
matters relating to the Debt Securities offered hereby will be passed upon for
any underwriter, dealer or agent by Kirkpatrick & Lockhart LLP, Pittsburgh,
Pennsylvania.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses of the Company in connection with the issuance and
distribution of the Debt Securities, other than underwriting discounts and
commissions, are as follows:
<TABLE>
<S> <C>
Registration fee............................................... $ 58,000.00
Rating agency fees............................................. 53,000.00
Trustee's fees, including counsel and authentication fees and
expenses...................................................... 25,000.00
Accounting fees and expenses................................... 35,000.00
Legal fees and expenses........................................ 60,000.00
Blue Sky fees and expenses..................................... 15,000.00
Printing expense............................................... 20,000.00
Other.......................................................... 10,000.00
-----------
Total Expenses................................................. $276,000.00
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law of 1988,
as amended (the "PBCL"), provide that a business corporation shall have the
power to indemnify any person who was or is a party, or is threatened to be
made a party, to any proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such proceeding, if such
person 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 proceeding, had no reasonable cause to believe his conduct was
unlawful. In the case of an action by or in the right of the corporation, such
indemnification is limited to expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person has been
adjudged to be liable to the corporation unless, and only to the extent that,
a court determines upon application that, despite the adjudication of
liability but in view of all the circumstances, such person is fairly and
reasonably entitled to indemnity for the expenses that the court deems proper.
PBCL Section 1744 provides that, unless ordered by a court, any
indemnification referred to above shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to the proceeding; or
(2) if such a quorum is not obtainable, or if obtainable and a majority
vote of a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, PBCL Section 1743 provides that to the extent
that a director, officer, employee or agent of a business corporation is
successful on the merits or otherwise in defense of any proceeding referred to
above, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
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PBCL Section 1745 provides that expenses (including attorneys' fees)
incurred by an officer, director, employee or agent of a business corporation
in defending any such proceeding may be paid by the corporation in advance of
the final disposition of the proceeding upon receipt of an undertaking to
repay the amount advanced if it is ultimately determined that the indemnitee
is not entitled to be indemnified by the corporation.
PBCL Section 1746 provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, the foregoing provisions is not
exclusive of any other rights to which a person seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, and that indemnification may be granted under any
bylaw, agreement, vote of shareholders or directors or otherwise for any
action taken or any failure to take any action whether or not the corporation
would have the power to indemnify the person under any other provision of law
and whether or not the indemnified liability arises or arose from any action
by or in the right of the corporation; provided, however, that no
indemnification may be made in any case where the act or failure to act giving
rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
Article IV of the By-Laws of the Company provides that the directors,
officers, agents and employees of the Company shall be indemnified as of right
to the fullest extent now or hereafter not prohibited by law in connection
with any actual or threatened action, suit or proceeding, civil, criminal,
administrative, investigative or other (whether brought by or in the right of
the Company or otherwise) arising out of their service to the Company or to
another enterprise at the request of the Company.
PBCL Section 1747 permits a Pennsylvania business corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise, against any liability asserted
against such person 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 the person against such liability under the provisions described
above.
Article IV of the By-Laws of the Company provides that the Company may
purchase and maintain insurance to protect itself and any director, officer,
agent or employee entitled to indemnification under that Article IV against
any liability asserted against such person and incurred by such person in
respect of the service of such person to the Company, whether or not the
Company would have the power to indemnify such person against such liability
by law or under the provisions of that Article IV.
The Company maintains directors' and officers' liability insurance covering
its directors and officers with respect to liabilities, including liabilities
under the Securities Act of 1933, as amended, which they may incur in
connection with their serving as such. Under this insurance, the Company may
receive reimbursement for amounts as to which the directors and officers are
indemnified by the Company under the foregoing By-Law indemnification
provision. Such insurance also provides certain additional coverage for the
directors and officers against certain liabilities even though such
liabilities may not be covered by the foregoing By-Law indemnification
provision.
As permitted by PBCL Section 1713, the Articles and By-Laws of the Company
provide that no director shall be personally liable for monetary damages for
any action taken, or failure to take any action, unless such director's breach
of duty or failure to perform constituted self-dealing, willful misconduct or
recklessness. The PBCL states that this exculpation from liability does not
apply to the responsibility or liability of a director pursuant to any
criminal statute or the liability of a director for the payment of taxes
pursuant to Federal, state or local law. It may also not apply to liabilities
imposed upon directors by the Federal securities laws. PBCL Section 1715(d)
creates a presumption, subject to exceptions, that a director acts in the best
interests of the corporation. PBCL Section 1712, in defining the standard of
care a director owes to the corporation, provides that a director stands in a
fiduciary relation to the corporation and must perform his duties as a
director or as a member of any committee of the Board in good faith, in a
manner he reasonably believes to be in the best interests of the corporation
and with such care, including reasonable inquiry, skill and diligence, as a
person of ordinary prudence would use under similar circumstances.
II-2
<PAGE>
In June, 1987, the Company entered into a separate Indemnity Agreement with
each of its then directors and officers. These Indemnity Agreements provide a
contractual right to indemnification against expenses and liabilities (subject
to certain limitations and exceptions) and a contractual right to advancement
of expenses, and contain additional provisions regarding the determination of
entitlement, settlement of proceedings, insurance, rights of contribution, and
other matters.
ITEM 16. EXHIBITS.
Number
1.1 Form of Underwriting Agreement.
1.2 Form of Distribution Agreement.
4.1 Form of Indenture dated as of June , 1996 providing for issuance of
Debt Securities.
5.1 Opinion and consent of Augustine A. Mazzei, Jr., Esq.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Augustine A. Mazzei, Jr., Esq., contained in Exhibit 5.1.
23.3 Consent of Reed Smith Shaw & McClay.
24.1 Power of Attorney is set forth on page II- of the registration
statement.
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bank of Montreal Trust Company, as Trustee.
ITEM 17. UNDERTAKINGS.
(a) Rule 415 offering.
The undersigned 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, as amended (the "1933 Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low
or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
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
II-3
<PAGE>
Securities and Exchange Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934, as amended (the "1934
Act"), that are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) Filings incorporating subsequent 1934 Act documents by reference.
The undersigned hereby undertakes that, for purposes of determining any
liability under the 1933 Act, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the 1934 Act that is
incorporated by reference in the 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.
(h) Request for Acceleration of Effective Date.
Insofar as indemnification for liabilities arising under the 1933 Act 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
1933 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933
Act and will be governed by the final adjudication of such issue.
(i) Rule 430A Offerings.
The undersigned hereby undertakes that:
(1) For purposes of determining any liability under the 1933 Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the 1933 Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the 1933 Act, each
post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-4
<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 Pittsburgh, Commonwealth of Pennsylvania, on June
26, 1996.
EQUITABLE RESOURCES, INC.
/s/ Frederick H. Abrew
By: ________________________________
Frederick H. Abrew, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints FREDERICK H. ABREW, A. MARK ABRAMOVIC and
AUGUSTINE A. MAZZEI, JR., and each of them his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on June 26, 1996.
SIGNATURE TITLE
/s/ Frederick H. Abrew President and Chief Executive Officer (Principal
- ------------------------- Executive Officer)
Frederick H. Abrew
/s/ A. Mark Abramovic Vice President and Chief Financial Officer
- ------------------------- (Principal Financial Officer)
A. Mark Abramovic
/s/ Augustine M. Mazzei, Jr.Senior Vice President and Chief Legal Officer
- -------------------------
Augustine M. Mazzei, Jr.
/s/ Jeffrey C. Swoveland Vice President--Finance and Treasurer (Chief
- ------------------------- Accounting Officer)
Jeffrey C. Swoveland
II-5
<PAGE>
SIGNATURE TITLE
--------- -----
/s/ Paul Christiano Director
- -------------------------
Paul Christiano
/s/ E. Lawrence Keyes, Jr. Director
- -------------------------
E. Lawrence Keyes, Jr.
/s/ Thomas A. McConomy Director
- -------------------------
Thomas A. McConomy
/s/ Donald I. Moritz Director
- -------------------------
Donald I. Moritz
/s/ Malcolm M. Prine Director
- -------------------------
Malcolm M. Prine
/s/ James E. Rohr Director
- -------------------------
James E. Rohr
/s/ Phyllis A. Savill Director
- -------------------------
Phyllis A. Savill
/s/ David S. Shapira Director
- -------------------------
David S. Shapira
/s/ J. Michael Talbert Director
- -------------------------
J. Michael Talbert
II-6
<PAGE>
EQUITABLE RESOURCES, INC.
DEBT SECURITIES
------------
REGISTRATION STATEMENT ON FORM S-3
------------
EXHIBIT INDEX (PURSUANT TO ITEM 601 OF REGULATION S-K)
<TABLE>
<CAPTION>
PAGE NUMBER
IN
SEQUENTIAL
EXHIBIT NUMBERING
NO. DESCRIPTION SYSTEM
------- ----------- -----------
<C> <S> <C>
1.1 Form of Underwriting Agreement. --
1.2 Form of Distribution Agreement. --
4.1 Form of Indenture dated as of June , 1966 providing for
issuance of Debt Securities. --
5.1 Opinion and consent of Augustine A. Mazzei, Jr., Esq. --
12.1 Computation of Ratio of Earnings to Fixed Charges. --
23.1 Consent of Ernst & Young, LLP. --
23.2 Consent of Augustine A. Mazzei, Jr., Esq., contained in
Exhibit 5.1. --
23.3 Consent of Reed Smith Shaw & McClay. --
24.1 Power of Attorney is set forth on page II-5 of the
Registration Statement. --
25.1 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Bank of
Montreal Trust Company, as Trustee. --
</TABLE>
II-7
<PAGE>
EXHIBIT 1.1
EQUITABLE RESOURCES, INC.
DEBT SECURITIES
Underwriting Agreement
__________, 199_
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Equitable Resources, Inc., a Pennsylvania corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") between the Company and the Trustee
identified in such Schedule (the "Trustee"). 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.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), two registration
statements (the file numbers of which are set forth in Schedule I hereto) on
Form S-3, relating to certain debt securities (the "Shelf Securities") to be
issued from time to time by the Company. The Company also has filed with, or
proposes to file with, the Commission pursuant to Rule 424 under the Securities
Act a prospectus supplement specifically relating to the Securities. The
registration statements as amended to the date of this Agreement are hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of the
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the
<PAGE>
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the fifth Business Day thereafter, as you and the
Company may agree in writing). As used herein, the term "Business Day" means
any day other than a day on which banks are permitted or required to be closed
in New York City. The time and date of such payment and delivery with respect
to the Securities are referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Note") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The Global Note will be made available for inspection by the
Representatives at the office of [the Trustee, address] [J.P. Morgan Securities
Inc. at the address set forth above] not later than 1:00 P.M., New York City
time, on the Business Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration
-2-
<PAGE>
Statement has been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Company, threatened by the Commission; and the
Registration Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the Securities Act and
the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust Indenture Act"), and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and the Prospectus, as amended or supplemented at the
Closing Date, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-l) under the Trust Indenture Act of the
Trustee, and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are made,
not misleading;
(c) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein[; and the
pro forma financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the Securities
Act and the Exchange Act, as applicable, and
-3-
<PAGE>
is based upon good faith estimates and assumptions believed by the Company to be
reasonable];
(d) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any change in
the capital stock or long-term debt of the Company or any of its subsidiaries
other than pursuant to the conversion of convertible securities or the exercise
of stock options, in either case, set forth in the most recent financial
statements of the Company included or incorporated in the Prospectus, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus; and except as set forth or contemplated in
the Prospectus neither the Company nor any of its subsidiaries has entered into
any transaction or agreement (whether or not in the ordinary course of business)
material to the Company and its subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(f) each of the Company's subsidiaries has been duly incorporated and
is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, other
than where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a whole;
and all the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and non-
assessable, and (except in the case of foreign subsidiaries, for directors'
qualifying shares) are owned by the Company, directly or indirectly, free and
clear of all liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and delivered
by the Company;
(h) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability; and the Indenture
-4-
<PAGE>
(including any amendments and supplements thereto) conforms with all
requirements of the Trust Indenture Act and the applicable rules and regulations
promulgated thereunder by the Commission;
(i) the Securities have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly paid
for by the purchasers thereof, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditor's rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability; the
Securities, when executed and authenticated in accordance with the Indenture and
delivered to and duly paid for by the purchasers thereof, will rank pari passu
---- -----
with all Securities (as defined in the Indenture) issued and to be issued under
the Indenture and all other unsecured debt of the Company which is not expressly
subordinated; and the Securities and the Indenture will conform to the
description thereof in the Prospectus;
(j) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Restated Articles of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound, except
for violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to the holders
of the Securities; the issue and sale of the Securities and the performance by
the Company of all of the provisions of its obligations under the Securities,
the Indenture and this Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any such action
result in any violation of the provisions of the Restated Articles of
Incorporation or By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Securities or the consummation
by the Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the Securities Act
or the Trust Indenture Act and as may be required under state securities or Blue
Sky Laws in connection with the purchase and distribution of the Securities by
the Underwriters or from the Pennsylvania Public Utility Commission and the
Kentucky Public Service Commission in connection with the issuance and sale of
the Securities;
(k) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the
-5-
<PAGE>
knowledge of the Company, threatened against or affecting the Company or any of
its subsidiaries or any of their respective properties or to which the Company
or any of its subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries or to which the Company or any of its
subsidiaries is or may be subject which, if determined adversely to the Company
or any of its subsidiaries, could individually or in the aggregate reasonably be
expected to have a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole and, to the best
of the Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; and there are no statutes,
regulations, contracts or other documents that are required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required;
(l) the Company and its subsidiaries have good and marketable title
in fee simple to all items of real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in the
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made or proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid, existing
and enforceable leases with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or its subsidiaries;
(m) no relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries
on the other hand, which is required by the Securities Act to be described in
the Registration Statement and the Prospectus which is not so described;
(n) the Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(o) the Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba;
(p) the Company and its subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed and have paid
all taxes shown thereon and all assessments received by them or any of them to
the extent that such taxes have become due and are not being contested in good
faith; and, except as disclosed in the Registration Statement and the
Prospectus, there is no tax deficiency which has been or might reasonable be
expected to be asserted or threatened against the Company or any of its
subsidiaries;
-6-
<PAGE>
(q) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as conducted as of
the date hereof, except where the failure to so own or possess or to have so
obtained or made would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole, and neither the
Company nor any such subsidiary has received any actual notice of any proceeding
relating to revocation or modification of any such license, permit, certificate,
consent, order, approval or other authorization, except as described in the
Registration Statement and the Prospectus; and each of the Company and its
subsidiaries is in compliance with all laws and regulations relating to the
conduct of its business as conducted as of the date hereof, except where the
failure to be in compliance would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken as a whole;
(r) the Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses, (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole, and (iv)
are not aware of any administrative or judicial action being contemplated by
governmental authorities relating to Environmental Laws; neither the Company nor
any of its subsidiaries are subject to any consent decree or compliance or
administrative order issued pursuant to, or are the subject of any pending
investigation or litigation under, applicable Environmental Laws except for such
actions, decrees, orders or investigations which do not and are not reasonably
expected to have a material adverse effect on, or cause material changes to, the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and neither the Company nor any of its
subsidiaries is a party to a governmental proceeding arising under any
Environmental Law which involves potential monetary sanctions, exclusive of
interest and costs, of $100,000 or more;
(s) in the ordinary course of its business, the Company reviews the
effect of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties); and, on the basis of such review, the Company has reasonably
concluded that such
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associated costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a whole;
(t) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a material adverse effect on the Company
and its subsidiaries taken as a whole; and
(u) each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that
is maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and its affiliates
has been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended (the "Code"). No
prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption. For
each such plan which is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair
market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeded the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the Prospectus in a form approved by you pursuant to Rule
424 under the Securities Act not later than the Commission's close of business
on the second Business Day following the date of determination of the offering
price of the Securities or, if applicable, such earlier time as may be required
by Rule 424(b);
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each case
including exhibits and documents incorporated by reference therein and, during
the period mentioned in paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish to
you a copy of any proposed amendment or supplement to the Registration Statement
or the Prospectus, for your review, and not to file any such proposed amendment
or supplement to which you reasonably object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period, to advise you promptly, and to
confirm such advice in writing, (i) when
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<PAGE>
any amendment to the Registration Statement shall have become effective, (ii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threatening of
any proceeding for that purpose, and (iv) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best efforts to
prevent the issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which Securities
may have been sold by you on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law; and
the opinion of Kirkpatrick & Lockhart LLP described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein;
(f) to endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to continue such qualification in effect so long as reasonably
required for distribution of the Securities; provided, that the Company shall
--------
not be required to file a general consent to service of process or qualify to do
business in any jurisdiction;
(g) to make generally available to its security holders and to you as
soon as practicable an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring after
the effective date of the Registration Statement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(h) until the fifth anniversary of the date hereof, to furnish to you
copies of all reports or other communications (financial or other) furnished to
holders of Securities, and copies of any reports and financial statements
furnished to or filed with the Commission or any national securities exchange;
(i) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of or guaranteed by
the Company which are substantially similar to the Securities;
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<PAGE>
(j) to use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
[(k) to use its best efforts to [list, subject to notice of issuance,
the Securities on the ____________ Stock Exchange (the "Exchange")] [list for
quotation the Securities on the National Association of Securities Dealers
Automated Quotations National Market (the "Nasdaq National Market")];] and
(l) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may designate (including fees of counsel for
the Underwriters and their disbursements), [(iv) in connection with the listing
of the Securities on the [Exchange] [Nasdaq National Market],] (v) related to
any filing with the National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, the Preliminary and Supplemental
Blue Sky Memoranda and any Legal Investment Survey and the furnishing to
Underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided, (vii) payable to
rating agencies in connection with the rating of the Securities, (viii) any
expenses incurred by the Company in connection with a "road show" presentation
to potential investors, and (ix) the cost and charges of any transfer agent.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on and as
of the Closing Date and the Company shall have complied with all agreements and
all conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Securities Act within the applicable time period
prescribed for such filing by the Securities Act; no stop order suspending the
effectiveness of the Registration Statement nor any order suspending the
qualification of the Securities for offering or sale in any jurisdiction shall
be in effect and no proceeding for such purpose shall have been initiated or
threatened by the Commission or any state or other regulatory body; and all
requests for additional information on the part of the Commission shall have
been complied with to your satisfaction;
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<PAGE>
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material adverse
change or any development involving a prospective material adverse change in or
affecting the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus; and neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Company, with specific
knowledge about the Company's financial matters, satisfactory to you to the
effect set forth in subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company) of this
Section and to the further effect that there has not occurred any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement or Prospectus;
(f) Augustine A. Mazzei, Jr., Senior Vice President and Chief Legal
Officer of the Company, shall have furnished to you his written opinion, dated
the Closing Date, in form and substance satisfactory to you, 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 its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good
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<PAGE>
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(iii) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure
to be so qualified and in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and all of the
issued shares of capital stock of each subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable, and
(except in the case of foreign subsidiaries, for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(iv) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the best of such counsel's knowledge, threatened
against or affecting the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its subsidiaries is
or may be a party or to which any property of the Company or its
subsidiaries is or may be subject which, if determined adversely to the
Company or any of its subsidiaries, could individually or in the aggregate
have, or reasonably be expected to have, a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others; and such counsel does not know of any statutes,
regulations, contracts or other documents that are required to be filed as
an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described
as required;
(v) neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of or
in default under, its Restated Articles of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company and its
subsidiaries taken as a whole or to the holders of the Securities; the
issue and sale of the Securities and the performance by the Company of its
obligations under the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
the Company or any of its subsidiaries is a party or by which the Company
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<PAGE>
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will any
such action result in any violation of the provisions of the Restated
Articles of Incorporation or By-Laws of the Company or any applicable law
or statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, its subsidiaries or
any of their respective properties;
(vi) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental agency
or body is required for the issue and sale of the Securities or the
consummation of the other transactions contemplated by this Agreement or
the Indenture, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters or from the Pennsylvania
Public Utility Commission and the Kentucky Public Service Commission in
connection with the issuance and sale of the Securities;
(vii) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the Prospectus
as amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
complied as to form when filed with the Commission in all material respects
with the Exchange Act, (B) believes that (except for the financial
statements included therein as to which such counsel need express no
belief) each part of the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission pursuant to
the Securities Act, when such part became effective, did not and, as of the
date such opinion is delivered, does not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (C) is
of the opinion that the Registration Statement and the Prospectus and any
amendments and supplements thereto (except for the financial statements
included therein as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and (D) believes that (except for the
financial statements included therein as to which such counsel need express
no belief) the Registration Statement and the Prospectus, on the date of
this Agreement, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the Prospectus as
amended or supplemented, if applicable, does not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(viii) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment company" or
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act;
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<PAGE>
(ix) each of the Company and its subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign, necessary to own
or lease, as the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, except where the failure
to so own or possess or to have so obtained or made would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole, and neither the Company nor any such
subsidiary has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate,
consent, order, approval or other authorization, except as described in the
Registration Statement and the Prospectus; and each of the Company and its
subsidiaries is in compliance with all laws and regulations relating to the
conduct of its business as conducted as of the date of the Prospectus,
except where the failure to be in compliance would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(x) the Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described or referred to
in the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held
by them under valid, existing and enforceable leases with such exceptions
as are not material and do not interfere with the use made or proposed to
be made of such property and buildings by the Company or its subsidiaries;
and
(xi) each of the Company and its subsidiaries is in compliance
with all Environmental Laws, except, in each case, where noncompliance,
individually or in the aggregate, would not have a material adverse effect
on the Company and its subsidiaries taken as a whole; and there are no
legal or governmental proceedings pending or, to the knowledge of such
counsel, threatened against or affecting the Company or any of its
subsidiaries under any Environmental Law which, individually or in the
aggregate, could reasonably be expected to have a material adverse effect
on the Company and its subsidiaries taken as a whole.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the Commonwealth of Pennsylvania, to the extent such counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters' counsel) of other
counsel reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws; (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company.
The opinion of such
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<PAGE>
counsel for the Company shall state that the opinion of any such other counsel
upon which he relied is in form satisfactory to such counsel and, in such
counsel's opinion, the Underwriters and he are justified in relying thereon.
(g) Reed Smith Shaw & McClay, counsel for the Company, shall have
furnished to you their written opinion, dated the Closing Date, in form and
substance satisfactory to you, 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 its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement except as
rights to indemnity and contribution hereunder may be limited by applicable
law;
(iii) the Securities have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company entitled to the
benefits provided by the Indenture except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding instrument of
the Company; and the Indenture has been duly qualified under the Trust
Indenture Act except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
(v) the issue and sale of the Securities and the performance by
the Company of its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any violation
of the provisions of the Restated Articles of Incorporation or By-Laws of
the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective properties;
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<PAGE>
(vi) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental agency
or body is required for the issue and sale of the Securities or the
consummation of the other transactions contemplated by this Agreement or
the Indenture, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters or from the Pennsylvania
Public Utility Commission and the Kentucky Public Service Commission in
connection with the issuance and sale of the Securities;
(vii) the statements in the Prospectus under "_______",
"Description of the Debt Securities" and "Plan of Distribution", in the
Prospectus incorporated by reference from Item 3 of Part 1 of the Company's
Annual Report on Form 10-K for the year ended December 31, 19___, in the
Prospectus incorporated by reference from item 1 of Part II of the
Company's Quarterly Reports on Form 10-Q, if any, filed with the Commission
since such Annual Report, in the Prospectus incorporated by reference from
item 5 of the Company's Current Reports on Form 8-K, if any, filed with the
Commission since such Annual Report and in the Registration Statement in
Item 15, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents or
proceedings; and
(viii) such counsel (A) is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements thereto
(except for the financial statements included therein as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Trust Indenture Act and
(B) believes that (except for the financial statements included therein as
to which such counsel need express no belief) the Registration Statement
and the Prospectus, on the date of this Agreement, did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and that the Prospectus as amended or supplemented, if
applicable, does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the Commonwealth of Pennsylvania, to the extent such counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters' counsel) of other
counsel reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws; (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company.
The opinion of such counsel for the Company shall state that the opinion of any
such other counsel upon which
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<PAGE>
they relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon. With
respect to the matters to be covered in subparagraph (viii) above, counsel may
state their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any amendment
or supplement thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof (including the
documents incorporated by reference therein) but is without independent check or
verification except as specified.
(h) on the date hereof and on the Closing Date, Ernst & Young LLP
shall have furnished to you letters, dated such date, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus;
(i) you shall have received on and as of the Closing Date an opinion
of Kirkpatrick & Lockhart LLP, counsel to the Underwriters, with respect to the
validity of the Indenture and the Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
[(j) the Securities shall have been approved for listing on the
[insert name of stock exchange], subject to official notice of issuance;] and
(k) on or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter
[, each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities] and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use
therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and
-17-
<PAGE>
each person who controls the Company within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
[, each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities] and such control persons of Underwriters shall
be designated in writing by the first of the named Representatives on Schedule I
hereto and any such separate firm for the Company, its directors, its officers
who sign the Registration Statement and such control persons of the Company or
authorized representatives shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought
-18-
<PAGE>
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
--- ----
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of the Securities set forth opposite their names in
Schedule I hereto, and is not joint.
-19-
<PAGE>
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the Philadelphia Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
or in Pennsylvania shall have been declared by either Federal or the relevant
state authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and which,
in the judgment of the Representatives, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amounts of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided, that in no event shall the
--------
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required
-20-
<PAGE>
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and expenses of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the offering
of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, [each affiliate of any Underwriter which assists
such Underwriter in the distribution of the Securities,] any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
I hereto. Notices to the Company shall be given to it at 420 Boulevard of the
Allies, Pittsburgh, Pennsylvania 15219, Attention: Jeffrey C. Swoveland,
Treasurer (telefax number: 412-553-5875).
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
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<PAGE>
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
EQUITABLE RESOURCES, INC.
By:___________________________
Name:
Title:
Accepted: _____________, 1996
J.P. Morgan Securities Inc.
NationsBanc Capital Markets Inc.
Acting severally on behalf
of themselves and the several
Underwriters listed in Schedule II
hereto.
By: J.P. Morgan Securities Inc.
By:_______________________
Name:
Title:
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<PAGE>
SCHEDULE I
Representatives: __________________________________________
Underwriting Agreement dated: __________________________________________
Registration Statement No.: __________________________________________
Title of Securities: __________________________________________
Aggregate principal amount: $_________________________________________
Price to Public: __% of the principal amount of the Securities,
plus accrued interest, if any, from ________,
199__ to the Closing Date.
Indenture: Indenture dated as of __________________ between
the Company and ________________, as trustee.
Maturity: __________________________________________
Interest Rate: __________________________________________
Interest Payment Dates: __________________________________________
Optional Redemption Provisions: __________________________________________
<PAGE>
Sinking Fund Provisions: __________________________________________
Other Provisions: __________________________________________
Closing Date and Time of Delivery: __________________________________________
Closing Location: __________________________________________
Address for Notices to Underwriters: __________________________________________
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities
Underwriter To Be Purchased
- ----------- ---------------
<S> <C>
J.P. Morgan Securities Inc. ................ $_____________
NationsBanc Capital Markets Inc. ........... $_____________
_______________________
Total.............. $
</TABLE>
<PAGE>
EXHIBIT 1.2
EQUITABLE RESOURCES, INC.
$
----------
Medium-Term Notes, Series
--
Due from 9 months to [30] Years from Date of Issue
DISTRIBUTION AGREEMENT
, 199
----------- -
[Names and addresses of Agents]
- -----------------------------------------
- -----------------------------------------
- -----------------------------------------
Dear Sirs:
Equitable Resources, Inc., a Pennsylvania corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale from
time to time by the Company of its Medium-Term Notes, Series due from 9
---
months to [30] years from date of issue (the "Securities") in an aggregate
initial offering price of up to $ (or the equivalent thereof in one or
----------
more foreign currencies or composite currencies) [, as such amount shall be
reduced by the aggregate initial offering price of any other debt securities
issued by the Company, whether within or without the United States ("Other
Securities") pursuant to the registration statement referred to below,] and
agrees with each of you (individually, an "Agent", and collectively, the
"Agents", which term shall include any additional agents appointed pursuant to
Section 13 hereof) as set forth in this Agreement. The Securities will be
issued under an indenture dated as of June , 1996 (the "Indenture") between
---
the Company and Bank of Montreal Trust Company, a , as trustee (the
----------
"Trustee"). The Securities shall have the maturities, interest rates,
redemption provisions, if any, and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established, from
time to time by the Company in accordance with the Indenture.
On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly to investors (other than
broker-dealers) on its own behalf, the Company hereby (i) appoints the Agents as
the exclusive agents of the Company for the purpose of soliciting and receiving
offers to purchase Securities from the Company by others pursuant to Section
2(a)
<PAGE>
hereof and (ii) agrees that, except as otherwise contemplated herein, whenever
it determines to sell Securities directly to any Agent as principal, it will
enter into a separate agreement (each such agreement a "Terms Agreement"),
substantially in the form of Exhibit A hereto, relating to such sale in
accordance with Section 2(b) hereof.
The Company has prepared and filed two registration statements on Form
S-3 (Nos. 33-53,703 and 33-00,000) in respect of the Securities with the
Securities and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act").
The Company also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act supplements to the prospectus
included in those registration statements as of the date hereof that will
describe certain terms of the Securities. Those registration statements,
including the exhibits thereto, as amended to the Commencement Date (as
hereinafter defined) are hereinafter referred to as the "Registration Statement"
and the prospectus in the form in which it appears in the Registration Statement
as of the date hereof is hereinafter referred to as the "Basic Prospectus". The
Basic Prospectus as supplemented by the prospectus supplement or supplements
(each, a "Prospectus Supplement") specifically relating to the Securities in the
form filed with, or transmitted for filing to, the Commission pursuant to Rule
424 under the Securities Act is hereinafter referred to as the "Prospectus".
Any reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of the Prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
1. Representations. The Company represents and warrants to, and
agrees with, each Agent as of the Commencement Date, as of each date on which
the Company accepts an offer to purchase Securities (including any purchase by
an Agent as principal pursuant to a Terms Agreement or otherwise), as of each
date the Company issues and sells Securities and as of each date the
Registration Statement or the Basic Prospectus is amended or supplemented, as
follows (it being understood that such representations and warranties shall be
deemed to relate to the Registration Statement, the Basic Prospectus and the
Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have
-2-
<PAGE>
furnished any amendments or supplements thereto) comply, or will comply, as
the case may be, in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust Indenture Act"), and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; except
that the foregoing representations and warranties shall not apply to (i)
statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to any
Agent furnished to the Company in writing by such Agent expressly for use
therein, and (ii) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading;
(c) The financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations and the changes in their consolidated cash
flows for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein[; and the pro forma financial
information, and the related notes thereto, if any, included or
incorporated by reference in the Registration Statement and the Prospectus
has been prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and is based upon good
faith estimates and assumptions believed by the Company to be reasonable];
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries other than pursuant to the conversion of convertible
securities or the exercise of stock options, in either case, set forth in
the most recent financial statements of the Company included or
incorporated in
-3-
<PAGE>
the Prospectus, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus; and except as set forth or contemplated in the
Prospectus neither the Company nor any of its subsidiaries has entered into
any transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken as a whole;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(f) Each of the Company's subsidiaries has been duly incorporated and
is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and all the outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized
and validly issued, are fully-paid and non-assessable, and (except in the
case of foreign subsidiaries, for directors' qualifying shares) are owned
by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) Each of this Agreement and any applicable Terms Agreement has been
duly authorized, executed and delivered by the Company and constitutes the
valid and binding agreement of the Company, except as rights to indemnity
and contribution hereunder or thereunder may be limited by applicable law;
(h) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
and the Indenture (including any amendments and supplements thereto)
conforms with all requirements of the Trust Indenture Act and the
applicable rules and regulations promulgated thereunder by the Commission;
-4-
<PAGE>
(i) The Securities have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly
paid for by the purchasers thereof, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditor's rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability; the Securities, when executed and authenticated
in accordance with the Indenture and delivered to and duly paid for by the
purchasers thereof, will rank pari passu with all Securities (as defined in
---- -----
the Indenture) issued and to be issued under the Indenture and all other
unsecured debt of the Company which is not expressly subordinated; and the
Securities and the Indenture will conform to the description thereof in the
Prospectus and the applicable Pricing Supplement;
(j) Neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Restated Articles of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a whole or to
the holders of the Securities; the issue and sale of the Securities and the
performance by the Company of all of its obligations under the Securities,
the Indenture, this Agreement and any Terms Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation
of the provisions of the Restated Articles of Incorporation or By-Laws of
the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective properties;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by this Agreement, any
applicable Terms Agreement or the Indenture, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been, or will have been prior to the Commencement
Date, obtained under the Securities Act or the Trust Indenture Act and as
may be required under state securities or Blue Sky laws in connection with
the offer and sale of the Securities or from the Pennsylvania Public
Utility Commission and the Kentucky Public Service Commission in connection
with the issuance and sale of the Securities;
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its
-5-
<PAGE>
subsidiaries or to which the Company or any of its subsidiaries is or may
be subject which, if determined adversely to the Company or any of its
subsidiaries, could individually or in the aggregate reasonably be expected
to have a material adverse effect on the general affairs, business,
prospects, management, consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; and there are no statutes, regulations, contracts or
other documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required;
(l) The Company and its subsidiaries have good and marketable title in
fee simple to all items of real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described or referred to
in the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made or proposed to be made of
such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held
by them under valid, existing and enforceable leases with such exceptions
as are not material and do not interfere with the use made or proposed to
be made of such property and buildings by the Company or its subsidiaries;
(m) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Securities Act to
be described in the Registration Statement and the Prospectus which is not
so described;
(n) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(o) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing
business with the Government of Cuba or with any person or affiliate
located in Cuba;
(p) The Company and its subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed and have
paid all taxes shown thereon and all assessments received by them or any of
them to the extent that such taxes have become due and are not being
contested in good faith; and, except as disclosed in the Registration
Statement and the Prospectus, there is no tax deficiency which has been or
might reasonably be expected to be asserted or threatened against the
Company or any of its subsidiaries;
(q) Each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings
with, all federal, state, local and other
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<PAGE>
governmental authorities (including foreign regulatory agencies), all self-
regulatory organizations and all courts and other tribunals, domestic or
foreign, necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as conducted as of the date hereof,
except where the failure to so own or possess or to have so obtained or
made would not, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries taken as a whole, and neither the
Company nor any such subsidiary has received any actual notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization,
except as described in the Registration Statement and the Prospectus; and
each of the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of the
date hereof, except where the failure to be in compliance would not, singly
or in the aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(r) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses, (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and (iv) are not aware of any
administrative or judicial action being contemplated by governmental
authorities relating to Environmental Laws; neither the Company nor any of
its subsidiaries are subject to any consent decree or compliance or
administrative order issued pursuant to, or are the subject of any pending
investigation or litigation under, applicable Environmental Laws except for
such actions, decrees, orders or investigations which do not and are not
reasonably expected to have a material adverse effect on, or cause material
changes to, the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole; and neither the Company nor any of its
subsidiaries is a party to a governmental proceeding arising under any
Environmental Law which involves potential monetary sanctions, exclusive of
interest and costs, of $100,000 or more;
(s) In the ordinary course of its business, the Company reviews the
effect of Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties); and, on the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
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<PAGE>
(t) There are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(u) Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
that is maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and its
affiliates has been maintained in compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986,
as amended (the "Code"). No prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code has occurred with respect
to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption. For each such plan which is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA no
"accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeded the present value of all benefits accrued under
such plan determined using reasonable actuarial assumptions; and
(v) Immediately after any sale of Securities by the Company hereunder
or under any applicable Terms Agreement, the aggregate amount of Securities
that will have been issued and sold by the Company hereunder or under any
Terms Agreement and of any debt securities of the Company (other than the
Securities) that will have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, each of the Agents hereby severally and not jointly agrees, as
agent of the Company, to use its reasonable efforts to solicit offers to
purchase Securities from the Company upon the terms and conditions set
forth in the Prospectus as amended or supplemented from time to time. So
long as this Agreement remains in effect with respect to any Agent, the
Company shall not, without the consent of such Agent, solicit or accept
offers to purchase, or sell, Securities or any other debt securities with a
maturity at the time of original issuance of 9 months to [30] years except
pursuant to this Agreement and any Terms Agreement or except pursuant to a
private placement not constituting a public offering under the Securities
Act or except in connection with a firm commitment underwriting pursuant to
an underwriting agreement that does not provide for a continuous offering
of medium-term debt securities. However, the Company reserves the right to
sell, and may solicit and accept offers to purchase, Securities directly on
its own behalf to investors (other than broker-dealers).
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
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<PAGE>
offers to purchase Securities. Upon receipt of at least one business day's
prior notice from the Company, each Agent will suspend solicitation of
offers to purchase Securities from the Company until such time as the
Company has advised such Agent or Agents that such solicitation may be
resumed. During the period of time that such solicitation is suspended,
the Company shall not be required to deliver any opinions, letters or
certificates in accordance with Sections 4(i), 4(j) and 4(k) hereof;
provided, that if the Registration Statement or Prospectus is amended or
supplemented during the period of suspension (other than by an amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered for Securities or
for a change that the Agents deem to be immaterial), no Agent shall be
required to resume soliciting offers to purchase Securities until the
Company has delivered such opinions, letters and certificates in accordance
with Sections 4(i), 4(j) and 4(k) hereof as such Agent may reasonably
request.
The Company agrees to pay each Agent, as consideration for the
sale of each Security resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Security in an amount equal to the
following applicable percentage of the principal amount of such Security
sold:
<TABLE>
<CAPTION>
Commission percentage
of aggregate principal
Range of Maturities amount of Securities sold
<S> <C>
From 9 months to less than 1 year ._____%
From 1 year to less than 18 months ._____%
From 18 months to less than 2 years ._____%
From 2 years to less than 3 years ._____%
From 3 years to less than 4 years ._____%
From 4 years to less than 5 years ._____%
From 5 years to less than 6 years ._____%
From 6 years to less than 7 years ._____%
From 7 years to less than 10 years ._____%
From 10 years to less than 15 years ._____%
From 15 years to less than 20 years ._____%
20 years and more ._____%
</TABLE>
The Agents are authorized to solicit offers to purchase
Securities only in the principal amount of $ (or, in the
------------------
case of Securities not denominated in U.S. dollars, the equivalent thereof
in the applicable foreign currency or composite currency, rounded down to
the nearest 1,000 units of such foreign currency or composite currency) or
any amount in excess thereof which is an integral multiple of
$ (or, in the case of Securities not denominated in U.S.
---------------
dollars, 1,000 units of such foreign currency or composite currency). Each
Agent shall communicate to the Company, orally or in writing, each offer to
purchase Securities received by such Agent as agent that in its judgment
should be considered by the Company. The Company shall have the sole right
to accept offers to purchase Securities and may reject any such offer in
whole or in part. Each Agent shall have the right, in its
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<PAGE>
sole discretion, to reject any offer to purchase Securities, in whole or in
part, that it considers to be unacceptable and any such rejection shall not
be deemed a breach of its agreements herein contained. The procedural
details relating to the issue and delivery of Securities sold by an Agent
as agent and the payment therefor are set forth in the Administrative
Procedures (as hereinafter defined).
(b) Purchase as Principal. Each sale of Securities to any Agent as
principal shall be made in accordance with the terms of this Agreement and
(unless such Agent shall otherwise agree) a Terms Agreement which will
provide for the sale of such Securities to, and the purchase thereof by,
such Agent. A Terms Agreement will be substantially in the form of Exhibit
A hereto but may take the form of an exchange of any standard form of
written telecommunication between an Agent and the Company and may also
specify certain provisions relating to the reoffering of such Securities by
such Agent. The commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, 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 set forth herein and in the applicable Terms Agreement. Each
agreement by an Agent to purchase Securities as principal (pursuant to a
Terms Agreement or otherwise) shall specify the principal amount of
Securities to be purchased by such Agent pursuant thereto, the price to be
paid to the Company for such Securities, the maturity date of such
Securities, the interest rate or interest rate basis, if any, applicable to
such Securities, any other terms of such Securities, the time and date and
place of delivery of and payment for such Securities (the time and date of
any and each such delivery and payment, being a "Time of Delivery"), any
provisions relating to rights of, and default by, underwriters acting
together with such Agent in the reoffering of Securities, and shall also
specify any requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof. Unless otherwise
specified in a Terms Agreement, the procedural details relating to the
issue and delivery of Securities purchased by an Agent as principal and the
payment therefor shall be set forth in the Administrative Procedures.
(c) Obligations Several. The Company acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have complete discretion as
to the manner in which it solicits purchasers for the Securities and as to
the identity thereof.
(d) Administrative Procedures. The Agents and the Company agree to
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may
be amended from time to time. The Administrative Procedures may be amended
only by written agreement of the Company and the Agents.
[(e) Other Securities. The Company agrees to notify each Agent of
sales by the Company of Other Securities.]
3. Commencement Date. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date shall be delivered to the
Agents at the offices of
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<PAGE>
, New York, New York, at 11:00 a.m., New York City
- ----------------------------
time, on the date of this Agreement, which date and time of such delivery may be
postponed by agreement between the Agents and the Company but in no event shall
be later than the day prior to the earlier of the date on which solicitation of
offers to purchase Securities is commenced or the first date on which the
Company accepts an offer by any Agent to purchase Securities as principal (such
time and date being referred to herein as the "Commencement Date").
4. Covenants of the Company. The Company covenants and agrees with
each Agent:
(a)(i) To make no amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the offering of the
Securities pursuant to this Agreement or any Terms Agreement which shall be
disapproved by any Agent after reasonable opportunity to comment thereon;
provided, however, that the foregoing shall not apply to any of the
Company's periodic filings with the Commission described in subsection
(iii) below, copies of which filings the Company will cause to be delivered
to the Agents promptly after their transmission to the Commission for
filing; (ii), subject to the foregoing clause (i), promptly to cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act and to
prepare, with respect to any Securities to be sold through or to any Agent
pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file such
Pricing Supplement in accordance with Rule 424(b) under the Securities Act;
and (iii) promptly to file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of Securities. To advise each Agent (i) of the
filing of any amendment or supplement to the Basic Prospectus or any
amendment to the Registration Statement and of the effectiveness of any
such amendment to the Registration Statement, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending the use of any
prospectus relating to the Securities or the initiation or threatening of
any proceeding for that purpose, or of any request by the Commission for
any amendment or supplement of the Registration Statement or Prospectus or
for additional information; and (iii) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Securities for offering or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose. To use its best
efforts to prevent the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or of any
notification suspending any such qualification and, if issued, to use
promptly its best efforts to obtain withdrawal thereof as soon as possible.
If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in
the Prospectus, no Agent shall be obligated to solicit offers to purchase
Securities so long as it is not reasonably satisfied with such document.
(b) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to continue such qualification in effect so long as
reasonably required in connection with the
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<PAGE>
distribution of the Securities and to pay all fees and expenses (including
fees and disbursements of counsel to the Agents) reasonably incurred in
connection with such qualification and in connection with the determination
of the eligibility of the Securities for investment under the laws of such
jurisdictions as any Agent may designate; provided, that the Company shall
not be required to file a general consent to service of process or qualify
to do business in any jurisdiction.
(c) To furnish each Agent and counsel to the Agents, at the expense of
the Company, a signed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the period
mentioned in paragraph (d) below, to furnish each Agent as many copies of
the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as such Agent may reasonably
request.
(d) If at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event shall occur as
a result of which the Prospectus, as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when such Prospectus is delivered to a
purchaser, not misleading, or, if in the opinion of the Agents or the
Company, it is necessary at any time to amend or supplement the Prospectus
to comply with law, to immediately notify the Agents by telephone (with
confirmation in writing) and request each Agent (i) in its capacity as
agent of the Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such Agent shall cease
such solicitations and cease using the Prospectus as soon as practicable,
but in any event not later than one business day later); and (ii) to cease
sales of any Securities such Agent may then own as principal. If the
Company shall decide to amend or supplement the Registration Statement or
the Prospectus, as then amended or supplemented, to so advise each Agent
promptly by telephone (with confirmation in writing) and, at its expense,
to prepare and cause to be filed promptly with the Commission an amendment
or supplement to the Registration Statement or the Prospectus, as then
amended or supplemented, satisfactory in all respects to the Agents, that
will correct such statement or omission or effect such compliance and to
supply such amended or supplemented Prospectus to the Agents in such
quantities as they may reasonably request. If any such amendment or
supplement and any documents, opinions, letters and certificates furnished
to the Agents pursuant to Sections 4(e), 4(i), 4(j) and 4(k) hereof in
connection with the preparation and filing of such amendment or supplement
are satisfactory in all respects to the Agents, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, the Agents
shall resume the solicitation of offers to purchase Securities hereunder.
Notwithstanding any other provision of this Section 4(d), until the
distribution of any Securities any Agent may own as principal has been
completed or in the event such Agent, in the opinion of its counsel, is
otherwise required to deliver a prospectus in respect of a transaction in
the Securities, if any event described in this Section 4(d) occurs the
Company shall, at its own expense, promptly prepare and file with the
Commission an amendment or supplement, satisfactory in all respects to such
Agent, that will correct such statement or omission or effect such
compliance, shall supply such amended or supplemented
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<PAGE>
Prospectus to such Agent in such quantities as such Agent may reasonably
request and shall furnish to such Agent pursuant to Sections 4(e), 4(i),
4(j) and 4(k) hereof such documents, certificates, opinions and letters as
it may request in connection with the preparation and filing of such
amendment or supplement.
(e) To furnish to the Agents during the term of this Agreement such
relevant documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or supplements thereto, the
Indenture, the Securities, this Agreement, the Administrative Procedures,
any applicable Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from time to time
reasonably request and to notify the Agents promptly in writing of any
downgrading, or upon its receipt of any notice of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate an improvement in the rating accorded any securities of, or
guaranteed by, the Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act.
(f) To make generally available to its security holders and to each
Agent as soon as practicable earnings statements which satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering periods of at least twelve
months beginning in each case with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement with respect to each sale of Securities.
(g) Until the expiration of the fifth anniversary of the last sale of
Securities in accordance with this Agreement, to furnish to each Agent
copies of all reports or other communications (financial or other)
furnished to holders of Securities and copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange.
(h) From the date of any applicable Terms Agreement with an Agent or
other agreement by such Agent to purchase Securities as principal and
continuing to and including the business day following the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are substantially
similar to such Securities, without the prior written consent of such
Agent.
(i) Each time the Registration Statement or the Prospectus is amended
or supplemented (other than by an amendment or supplement providing solely
for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on Securities or for a change the Agents
deem to be immaterial) and each time the Company sells Securities to an
Agent as principal pursuant to a Terms Agreement or other agreement and
such Terms Agreement or other agreement requires the delivery of opinions
under this Section 4(i) as a condition to the purchase of such Securities
pursuant to such Terms Agreement or other agreement, to furnish or cause to
be furnished forthwith to such Agent written opinions of the Chief Legal
Officer of the Company and of Reed Smith Shaw & McClay or other counsel for
the Company satisfactory to such
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<PAGE>
Agent, dated the date of such amendment or supplement or the related Time
of Delivery relating to such sale, as the case may be, in form satisfactory
to such Agent, of the same tenor as the opinions referred to in Sections
6(b) and 6(c) hereof but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the date of such
opinions, or, in lieu of such opinions, counsel last furnishing such
opinions may furnish to such Agent letters to the effect that such Agent
may rely on the opinions of such counsel which were last furnished to such
Agent to the same extent as though they were dated the date of such letters
(except that the statements in such last opinions shall be deemed to relate
to the Registration Statement and the Prospectus as amended or supplemented
to the date of delivery of such letters).
(j) Each time the Registration Statement or the Prospectus is amended
or supplemented to include or incorporate amended or supplemented financial
information and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement or other agreement and such Terms
Agreement or other agreement requires the delivery of a letter under this
Section 4(j) as a condition to the purchase of Securities pursuant to such
Terms Agreement or other agreement, to cause the independent certified
public accountants who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent a letter, dated the
date of such amendment or supplement or the related Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section 6(e) hereof
but modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter with such changes as may
be necessary to reflect such amended or supplemented financial information
included or incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented; provided, however, that, with
respect to any financial information or other matter, such letter may
reconfirm as true and correct at such date, as though made at and as of
such date, rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section 6(e)
hereof which was last furnished to such Agent.
(k) Each time the Registration Statement or the Prospectus is amended
or supplemented (other than by an amendment or supplement providing solely
for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on Securities or for a change the Agents
deem to be immaterial), and each time the Company sells Securities to such
Agent as principal pursuant to a Terms Agreement or other agreement and
such Terms Agreement or other agreement requires the delivery of a
certificate under this Section 4(k) as a condition to the purchase of
Securities pursuant to such Terms Agreement or other agreement, to furnish
or cause to be furnished forthwith to such Agent a certificate signed by an
executive officer of the Company, dated the date of such amendment or
supplement or the related Time of Delivery relating to such sale, as the
case may be, in form satisfactory to such Agent, of the same tenor as the
certificate referred to in Section 6(f) hereof but modified to relate to
the Registration Statement and the Prospectus as amended and supplemented
to the date of delivery of such certificate or to the effect that the
statements contained in the certificate referred to in Section 6(f) hereof
which was last furnished to such Agent are true and correct at such date as
though
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<PAGE>
made at and as of such date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended or
supplemented to such date).
5. Costs and Expenses. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Securities is
consummated, pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder and under any applicable Terms
Agreement, including without limiting the generality of the foregoing, all costs
and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Agents (or in
connection with any Terms Agreement, the applicable Agent) may designate
(including fees of counsel for the Agents (or such Agent) and their
disbursements), [(iv) in connection with the listing of the Securities on any
stock exchange,] (v) related to any filing with the National Association of
Securities Dealers, Inc., (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the Indenture,
any Blue Sky Memoranda and any Legal Investment Survey and the furnishing to the
Agents and dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided, (vii) payable to rating
agencies in connection with the rating of the Securities, (viii) the fees and
disbursements of the Company's counsel and accountants and of the Trustee and
its counsel, (ix) the fees and disbursements of counsel for the Agents incurred
in connection with the offering and sale of the Securities, including any
opinions to be rendered by such counsel hereunder, and (x) any advertising and
out-of-pocket expenses incurred by the Agents.
6. Conditions. The obligation of any Agent, as agent of the
Company, at any time (a "Solicitation Time") to solicit offers to purchase the
Securities, the obligation of any Agent to purchase Securities as principal
pursuant to any Terms Agreement or otherwise, and the obligation of any other
purchaser to purchase Securities shall in each case be subject (1) to the
condition that all representations and warranties of the Company contained
herein and all statements of officers of the Company made in any certificate
furnished pursuant to the provisions hereof are true and correct (i) in the case
of an Agent's obligation to solicit offers to purchase Securities, at and as of
such Solicitation Time and (ii) in the case of any Agent's or any other
purchaser's obligation to purchase Securities, at and as of the time the Company
accepts the offer to purchase such Securities and at and as of the related Time
of Delivery or time of purchase, as the case may be; (2) to the condition that
at or prior to such Solicitation Time, time of acceptance, Time of Delivery or
time of purchase, as the case may be, the Company shall have complied with all
its agreements and all conditions on its part to be performed or satisfied
hereunder; and (3) to the following additional conditions when and as specified:
(a) Prior to such Solicitation Time or Time of Delivery or time of
purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including, if
applicable, the Pricing Supplement) with respect to such Securities
shall have been filed with the Commission pursuant to Rule 424(b)
under the Securities Act within the applicable time period prescribed
for such filing by the Securities Act; no stop
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<PAGE>
order suspending the effectiveness of the Registration Statement or
any part thereof nor any order suspending the qualification of the
Securities for offering or sale in any jurisdiction shall be in effect
and no proceeding for such purpose shall have been initiated or
threatened by the Commission or any state or other regulatory body;
and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable
satisfaction of such Agent;
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of (A) any intended or potential downgrading or
(B) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by
the Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(iii) there shall not have been any material adverse change or
any development involving a prospective material adverse change in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, as amended or
supplemented to such Solicitation Time or at the time such offer to
purchase was made, the effect of which in the judgment of the
applicable Agent makes it impracticable or inadvisable to market the
Securities on the terms and in the manner contemplated in the
Prospectus, as so amended or supplemented; and
(iv)(A) trading generally shall not have been suspended or
materially limited on or by, as the case may be, any of the New York
Stock Exchange, the American Stock Exchange, the Philadelphia Stock
Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (B) trading of any securities of or guaranteed
by the Company shall not have been suspended on any exchange or in any
over-the-counter market, (C) a general moratorium on commercial
banking activities in New York or in Pennsylvania shall not have been
declared by either Federal or the relevant state authorities, or (D)
there shall not have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of such Agent or Agents or of such other
purchaser, is material and adverse and that, in the judgment of such
Agent or Agents or of such other purchaser, makes it impracticable to
market the Securities on the terms and in the manner contemplated in
the Prospectus as amended or supplemented at the Solicitation Time or
at the time such offer to purchase was made.
(b) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Augustine A. Mazzei, Jr.,
Senior Vice President and Chief Legal Officer of the Company, shall have
furnished to the relevant Agent or Agents his written opinion, dated
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<PAGE>
the Commencement Date or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent or Agents, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
(ii) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualifications, other
than where the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus, as amended or supplemented, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction
in which it owns or leases properties, or conducts any business, so as
to require such qualification, other than where the failure to be so
qualified and in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and all
of the issued shares of capital stock of each subsidiary have been
duly and validly authorized and issued, are fully paid and non-
assessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) other than as set forth or contemplated in the Prospectus,
as amended or supplemented, there are no legal or governmental
investigations, actions, suits or proceedings pending or, to the best
of such counsel's knowledge, threatened against or affecting the
Company or any of its subsidiaries or any of their respective property
or to which the Company or any of its subsidiaries is or may be a
party or to which any property of the Company or its subsidiaries is
or may be subject which, if determined adversely to the Company or any
of its subsidiaries, could individually or in the aggregate have, or
reasonably be expected to have, a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel
does not know of any statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus, as amended or supplemented, which are not
filed or described as required;
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<PAGE>
(v) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Restated Articles of
Incorporation or By-Laws or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by which
it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the
aggregate are not material to the Company and its subsidiaries taken
as a whole or to the holders of the Securities; the issue and sale of
the Securities and the performance by the Company of its obligations
under the Securities, the Indenture, this Agreement and any applicable
Terms Agreement or other agreement pursuant to which an Agent
purchases Securities as principal and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Restated Articles of Incorporation or the By-Laws of
the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties;
(vi) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by this
Agreement, any applicable Terms Agreement or other agreement pursuant
to which an Agent purchases Securities as principal, or the Indenture,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and as may be required
under state securities or Blue Sky laws in connection with offers and
sales of the Securities from the Company and with purchases of
Securities or from the Pennsylvania Public Utility Commission and the
Kentucky Public Service Commission in connection with the issuance and
sale of the Securities;
(vii) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) complied as to form when filed with the Commission in all
material respects with the Exchange Act, (B) believes that (except for
the financial statements included therein as to which such counsel
need express no belief) each part of the Registration Statement
(including the documents incorporated by reference therein) filed with
the Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, did not and, as of the
date such opinion is delivered, does not, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated
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<PAGE>
therein or necessary to make the statements therein not misleading,
(C) is of the opinion that the Registration Statement and the
Prospectus and any amendments and supplements thereto (except for the
financial statements included therein as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Trust Indenture Act and
(D) believes that (except for the financial statements included
therein as to which such counsel need express no belief) the
Registration Statement and the Prospectus, as amended or supplemented,
if applicable, as of the date such opinion is delivered does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, that in the case of an
opinion delivered on the Commencement Date or pursuant to Section 4(i)
hereof, the opinion and belief set forth in clauses (C) and (D) above
shall be deemed not to cover information concerning an offering of
particular Securities to the extent such information will be set forth
in a supplement to the Basic Prospectus;
(viii) the Company is not and, after giving effect to any
offering and sale of Securities, will not be an "investment company"
or entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(ix) each of the Company and its subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all self-
regulatory organizations and all courts and other tribunals, domestic
or foreign, necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as conducted as of
the Commencement Date or Time of Delivery, as the case may be, except
where the failure to so own or possess or to have so obtained or made
would not, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries taken as a whole, and neither the
Company nor any such subsidiary has received any actual notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization,
except as described in the Registration Statement and the Prospectus;
and each of the Company and its subsidiaries is in compliance with all
laws and regulations relating to the conduct of its business as
conducted as of the Commencement Date or Time of Delivery, as the case
may be, except where the failure to be in compliance would not, singly
or in the aggregate, have a material adverse effect on the Company and
its subsidiaries taken as a whole;
(x) the Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described or
referred to in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company
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<PAGE>
and its subsidiaries are held by them under valid, existing and
enforceable leases with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property
and buildings by the Company or its subsidiaries; and
(xi) each of the Company and its subsidiaries is in compliance
with all Environmental Laws, except, in each case, where
noncompliance, individually or in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and there are no legal or governmental proceedings pending or,
to the knowledge of such counsel, threatened against or affecting the
Company or any of its subsidiaries under any Environmental Law which,
individually or in the aggregate, could reasonably be expected to have
a material adverse effect on the Company and its subsidiaries taken as
a whole.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of the laws other than the laws of the United
States and the Commonwealth of Pennsylvania, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon
an opinion or opinions (in form and substance reasonably satisfactory to
the Agents' counsel) of other counsel reasonably acceptable to the Agents'
counsel, familiar with the applicable laws; and (B) as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company. The opinion of such
counsel for the Company shall state that the opinion of any such other
counsel upon which he relied is in form satisfactory to such counsel and,
in such counsel's opinion, the Agents and he are justified in relying
thereon.
(c) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Reed Smith Shaw & McClay,
counsel to the Company, shall have furnished to the relevant Agent or
Agents their written opinion, dated the Commencement Date or Time of
Delivery, as the case may be, in form and substance satisfactory to such
Agent or Agents, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
(ii) this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company and are valid
and binding agreements except as rights to indemnity and contribution
hereunder and thereunder may be limited by applicable law;
(iii) the Securities have been duly authorized and, when
executed and authenticated in accordance with the terms of the
Indenture and delivered to and
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<PAGE>
paid for by any purchaser of Securities sold through an Agent as agent
or any Agent as principal pursuant to any Terms Agreement or other
agreement, will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture except as
(A) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(B) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(iv) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding instrument of the
Company except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(v) the issue and sale of the Securities and the performance by
the Company of its obligations under the Securities, the Indenture,
this Agreement and any applicable Terms Agreement or other agreement
pursuant to which an Agent purchases Securities as principal and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Restated Articles of Incorporation
or the By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its subsidiaries or any of their
respective properties;
(vi) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by this
Agreement, any applicable Terms Agreement or other agreement pursuant
to which an Agent purchases Securities as principal, or the Indenture,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and as may be required
under state securities or Blue Sky laws in connection with offers and
sales of the Securities from the Company and with purchases of
Securities or from the Pennsylvania Public Utility Commission and the
Kentucky Public Service Commission in connection with the issuance and
sale of the Securities;
(vii) the statements in the Prospectus under " ",
-------------
"Description of the Debt Securities" and "Plan of Distribution", in
the Prospectus incorporated by reference from Item 3 of Part 1 of the
Company's Annual Report
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<PAGE>
on Form 10-K most recently filed with the Commission, in the
Prospectus incorporated by reference from Item 1 of Part II of the
Company's Quarterly Reports on Form 10-Q, if any, filed with the
Commission since such Annual Report, in the Prospectus incorporated by
reference from Item 5 of the Company's Current Reports on Form 8-K, if
any, filed with the Commission since such Annual Report and in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents or proceedings;
(viii) such counsel is of the opinion ascribed to it in the
Prospectus under the caption "Taxation", if any; and
(ix) such counsel (A) is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (except for the financial statements included therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the
Trust Indenture Act and (B) believes that (except for the financial
statements included therein as to which such counsel need express no
belief) the Registration Statement and the Prospectus, as amended or
supplemented, if applicable, as of the date such opinion is delivered
does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, that in the case
of an opinion delivered on the Commencement Date or pursuant to
Section 4(i) hereof, the opinion and belief set forth above shall be
deemed not to cover information concerning an offering of particular
Securities to the extent such information will be set forth in a
supplement to the Basic Prospectus;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of the laws other than the laws of the United
States and the Commonwealth of Pennsylvania, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon
an opinion or opinions (in form and substance reasonably satisfactory to
the Agents' counsel) of other counsel reasonably acceptable to the Agents'
counsel, familiar with the applicable laws; and (B) as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company. The opinion of such
counsel for the Company shall state that the opinion of any such other
counsel upon which they relied is in form satisfactory to such counsel and,
in such counsel's opinion, the Agents and they are justified in relying
thereon. With respect to the matters to be covered in subparagraphs
(c)(vii) and (c)(ix) above, counsel may state their opinion and belief is
based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto (other
than the documents incorporated by reference therein) and review and
discussion of the contents thereof (including the documents incorporated by
reference therein) but is without independent check or verification except
as specified.
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<PAGE>
(d) On the Commencement Date and, in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Kirkpatrick & Lockhart
LLP, counsel to the Agents, shall have furnished to the relevant Agent or
Agents such opinion or opinions, dated the Commencement Date or Time of
Delivery, as the case may be, with respect to the validity of the Indenture
and the Securities, the Registration Statement, the Prospectus as amended
or supplemented and other related matters as such Agent or Agents may
reasonably request, and in each case such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters.
(e) On the Commencement Date and, in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Ernst & Young LLP shall
have furnished to the relevant Agents a letter or letters, dated as of the
Commencement Date or such Time of Delivery, as the case may be, in form and
substance satisfactory to such Agents, containing statements and
information of the type customarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(f) On the Commencement Date and, in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent or
Agents shall have received a certificate or certificates signed by an
executive officer of the Company, with specific knowledge about the
Company's financial matters, dated the Commencement Date or Time of
Delivery, as the case may be, satisfactory to such Agent or Agents to the
effect set forth in Sections 6(a)(i) and (ii) above and to the further
effect that (1) the representations and warranties of the Company contained
herein are true and correct on and as of the Commencement Date or Time of
Delivery, as the case may be, as if made on and as of such date, (2) the
Company has complied with all agreements and all conditions on its part to
be performed or satisfied hereunder or under the applicable Terms Agreement
or other agreement at or prior to the Commencement Date or Time of
Delivery, as the case may be, and (3) there has not occurred any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole from that
set forth in or contemplated by the Registration Statement or the
Prospectus.
(g) On the Commencement Date and at each Time of Delivery, the Company
shall have furnished to the relevant Agent or Agents such further
certificates, information and documents as such Agent or Agents may
reasonably request.
7. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including without limitation the legal
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<PAGE>
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Agent furnished
to the Company in writing by such Agent expressly for use therein.
Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Agent, but only with
reference to information relating to such Agent furnished to the Company in
writing by such Agent expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Agents and
such control persons of the Agents shall be designated in writing by [J.P.
Morgan Securities Inc.] or, if [J.P. Morgan Securities Inc.] is not an
Indemnified Party, by the Agents that are Indemnified Parties and any such
separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as
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<PAGE>
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and each Agent on the other
from the offering of the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and each Agent
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other in connection with any offering of
Securities shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total discounts and commissions received by each
Agent in respect thereof bear to the aggregate offering price of such
Securities. The relative fault of the Company on the one hand and of each Agent
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by such Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
--- ----
allocation (even if all Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to above in this Section 7 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Agent be required to contribute any amount in
excess of the amount by which the total price at which the relevant Securities
that were sold by or through such Agent exceeds the amount of any damages that
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such
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<PAGE>
fraudulent misrepresentation. The obligation of each Agent to contribute
pursuant to this Section 7 is several in proportion to the principal amount of
the Securities the sale of which by or through such Agent gave rise to such
losses, claims, damages or liabilities bears to the aggregate principal amount
of the Securities the sale of which by or through any Agent gave rise to such
losses, claims, damages or liabilities and is not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which any Indemnifying Person may otherwise
have at law or in equity to any Indemnified Persons referred to above.
8. Termination.
(a) This Agreement may be terminated at any time (i) by the Company
with respect to any or all of the Agents or (ii) by any Agent with respect
to itself only, in each case upon the giving of written notice of such
termination to each other party hereto. Any Terms Agreement shall be
subject to termination in the absolute discretion of the Agent or Agents
that are parties thereto on the terms set forth or incorporated by
reference therein. The termination of this Agreement shall not require
termination of any agreement by an Agent to purchase Securities as
principal (whether pursuant to a Terms Agreement or otherwise) and the
termination of such an agreement shall not require termination of this
Agreement. In the event that this Agreement is terminated with respect to
any Agent, (x) this Agreement shall remain in full force and effect with
respect to any Agent as to which such termination has not occurred, (y)
this Agreement shall remain in full force and effect with respect to the
rights and obligations of any party which have previously accrued or which
relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such termination and (z) in any
event, the provisions of the fourth paragraph of Section 2(a), Section
2(c), the last sentence of Section 4(d) and Sections 4(f), 4(g), 5, 7, 9,
10, 12 and 15 hereof shall survive; provided, that if at the time of
termination an offer to purchase Securities has been accepted by the
Company but the time of delivery to the purchaser or its agent of such
Securities has not yet occurred, the provisions of Sections 2(b), 2(d),
4(a) through 4(e), 4(h) through 4(k) and 6 hereof shall also survive. If
any Terms Agreement is terminated, the provisions of the last sentence of
Section 4(d) and Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(g) through 4(k),
5, 6, 7, 9, 10, 12 and 15 hereof (which shall have been incorporated by
reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be terminated by an
Agent or Agents because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of
this Agreement or any Terms Agreement or if for any reason the Company
shall be unable to perform its obligations under this Agreement or any
Terms Agreement or any condition of any Agent's obligations cannot be
fulfilled, the Company agrees to reimburse such Agent or Agents as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Agent or Agents in connection with this
Agreement or the offering of Securities.
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<PAGE>
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Securities from the Company and in performing the other obligations of
such Agent hereunder (other than in respect of any purchase by an Agent as
principal pursuant to a Terms Agreement or otherwise), is acting solely as agent
for the Company and not as principal and does not assume any obligation towards
or relationship of agency or trust with any purchaser of Securities. Each Agent
will make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Securities from the Company was solicited
by such Agent and has been accepted by the Company, but such Agent shall not
have any liability to the Company in the event such purchase is not consummated
for any reason. If the Company shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, the Company shall (i)
hold the relevant Agent harmless against any loss, claim, damage or liability
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Securities
as principal shall remain operative and in full force and effect regardless of
any termination of this Agreement or any such agreement, any investigation made
by or on behalf of any Agent or any controlling person of any Agent or the
Company or any officer or director or controlling person of the Company and
shall survive each delivery of and payment for any of the Securities.
11. Notices. Except as otherwise specifically provided herein or in
the Administrative Procedures, all statements, requests, notices and advises
hereunder shall be in writing and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telex. Communications to the Agents will be sent, in the case of J.P. Morgan
Securities Inc., to 60 Wall Street, New York, New York 10260 (telefax: (212)
648-5909), Attention: Medium-Term Note Desk, in the case of , to
------------
and, if sent to the Company, to it at 420 Boulevard of the
- ------------------
Allies, Pittsburgh, Pennsylvania 15219, Attention: Jeffrey C. Swoveland, Vice
President-Finance, and Treasurer (telefax number: (412) 553-5875).
12. Successors. This Agreement and any Terms Agreement shall be
binding upon, and inure to the benefit of, each Agent and the Company, their
respective successors and the officers, directors and controlling persons
referred to in Section 7 hereof and (to the extent expressly provided in Section
6 hereof) the purchasers of Securities, and no other person shall acquire or
have any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. Amendments. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided, that the Company may from time to time, on 7
days prior written notice to the Agents but without the consent of any Agent,
amend this Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall become an
Agent hereunder on the same terms and conditions as the other Agents that are
parties
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<PAGE>
hereto. The Agents shall sign any amendment or supplement giving effect to the
addition of any such firm as an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day" shall mean any day
which is not a Saturday or Sunday or legal holiday or a day on which banks in
New York City or Pittsburgh, Pennsylvania are required or authorized by law or
executive order to close.
15. Applicable Law. This Agreement and any Terms Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to the conflicts of laws provisions thereof.
16. Counterparts. This Agreement and any Terms Agreement may be
signed in counterparts, each of which shall be an original and all of which
together shall constitute one and the same instrument.
17. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
EQUITABLE RESOURCES, INC.
By:
-----------------------------
Name:
Title:
Accepted in New York, New York,
as of the date first above written:
- --------------------------------------
By:
-----------------------------------
Name:
Title:
-----------------------------------
By:
-----------------------------------
Name:
Title:
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<PAGE>
Exhibit A
EQUITABLE RESOURCES, INC.
MEDIUM TERM NOTES, SERIES ___
TERMS AGREEMENT
____________________, 199__
Equitable Resources, Inc.
420 Boulevard of the Allies
Pittsburgh, PA 15219
Attention: ________________________
Re: Distribution Agreement dated as of
, 199__ (the "Distribution Agreement")
-----------------------------------------------
The undersigned agrees to purchase your Medium-Term Notes, Series ___
having the following terms:
Specified Currency: _____________________________
Principal Amount: _______________________________
Original Issue Date: ____________________________
Settlement Date, Time and Place: ________________
Maturity Date: __________________________________
Purchase Price: _______% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Price to Public: ______% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Redemption Date (Dates): , commencing
<PAGE>
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity
(For Fixed Rate Notes)
Interest Rate: __________________________________
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule:
(For Floating Rate Notes)
Initial Interest Rate: __________________________
Interest Rate Basis (Commercial Paper, LIBOR,
Treasury, _____________): ______________________
Index Maturity (30, 60, 90 days, 6 months, 1 year,
other): ________________________________________
Interest Reset Period (monthly, quarterly,
semiannually, annually): _______________________
Interest Payment Period (monthly, quarterly,
semiannually, annually): _______________________
Spread: _____________________________ points (+/-)
Spread Multiplier: _____________________________%
Maximum Interest Rate: _________________________%
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<PAGE>
Minimum Interest Rate: ________________________%
Initial Interest Reset Date: ____________________
Interest Reset Dates: ___________________________
Interest Determination Dates: ___________________
Interest Payment Dates: _________________________
Calculation Agent: ______________________________
Other terms of Securities: ______________________
Provisions relating to underwriter default,
if any: ________________________________________
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11,
12 and 15 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination in our absolute discretion on
the terms incorporated by reference herein. If this Agreement is so terminated,
the provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purposes of this Agreement.
[The certificate referred to in Section 4(k) of the Distribution
Agreement, the opinion referred to in Section 4(i) of the Distribution Agreement
and the accountants' letter referred to in Section 4(j) of the Distribution
Agreement will be required.]
[Agent]
By: ______________________
Name:
Title:
Accepted:
EQUITABLE RESOURCES, INC.
By: ______________________
Name:
Title:
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<PAGE>
Exhibit B
EQUITABLE RESOURCES, INC.
MEDIUM-TERM NOTES, SERIES __
ADMINISTRATIVE PROCEDURES
_________________________
The Medium-Term Notes, Series ___ (the "Notes"), are to be offered on
a continuous basis by Equitable Resources, Inc. (the "Company"). Each of
_______________ and _______________ (each, an "Agent") has agreed to solicit
offers to purchase the Notes in registered form. The Notes are being sold
pursuant to a Distribution Agreement dated as of __________ __, 199_ (the
"Agreement") between the Company and the Agents. In the Agreement, each Agent
has agreed to use reasonable efforts to solicit purchases of the Notes. Each
Agent, as principal, may purchase Notes for its own account and, if such Agent
so elects, the Company and such Agent will enter into a Terms Agreement, as
contemplated by the Agreement. The Company may also solicit offers to purchase
and may sell Notes directly on its own behalf to investors (other than broker-
dealers).
The Notes will be issued under an Indenture dated as of June __, 1996
(as supplemented or amended from time to time, the "Indenture") between the
Company and Bank of Montreal Trust Company, as trustee (the "Trustee"). The
Trustee will be the Registrar, Calculation Agent, Authenticating Agent and
Paying Agent for the Notes, and will perform the duties specified herein. Notes
will bear interest at a fixed rate (the "Fixed Rate Notes"), which may be zero
in the case of certain original issue discount notes (the "OID Notes"), or at
floating rates (the "Floating Rate Notes"). Fixed Rate Notes may pay a level
amount in respect of both interest and principal amortized over the life of the
Notes ("Amortizing Notes"). Each Note will be represented by either a Global
Security (as defined below) delivered to the Trustee, 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"). Except
in limited circumstances, an owner of a Book-Entry Note will not be entitled to
receive a Certificated Note.
Book-Entry Notes, which may be payable solely in U. S. dollars, will
be issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures, 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 or the Notes shall be used herein
as therein defined.
<PAGE>
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, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of the date hereof (the "Letter of
Representation"), and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated as of _____________ __, 19__, 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
U.S. $__________ principal amount of all such Notes that
have the same Maturity Date, redemption or repayment
provisions, Interest Payment Dates, Original Issue Date,
original issue discount provisions (if any), and, in the
case of Fixed Rate Notes, Interest Rate, modified payment
upon acceleration (if any), amortization schedule (if any)
or, in the case of Floating Rate Notes, Initial Interest
Rate, Interest Payment Dates, Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or Spread Multiplier
(if any), Alternative Rate Event Spread (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate (if any)
and, in each case, any other relevant terms (collectively,
"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 "Interest Accrual Date," which
will be (i) with respect to an original Global Security (or
any portion thereof), its original issuance date and (ii)
with respect to any Global Security (or any portion thereof)
issued subsequently upon exchange of a Global Security, or
in lieu of a destroyed, lost or stolen Global Security, the
most recent Interest Payment Date to which interest has been
paid or duly provided for on the predecessor Global Security
or Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor Global
Security), regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes may
only be denominated and payable in U.S. dollars. No Global
Security will represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note. [No
Note issued between a Record Date and the related Interest
Payment Date will be issued as a Global Security within the
meaning of the Indenture.]
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<PAGE>
Identification The Company has arranged with the CUSIP Service Bureau of
Numbers: Standard & Poor's Corporation (the "CUSIP Service Bureau")
for Securities representing the Book-Entry Notes. The
Company has obtained from the CUSIP Service Bureau a written
list of such series of reserved CUSIP numbers and has
delivered to the Trustee and DTC the written list of 900
CUSIP numbers of such series. The Trustee 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 Trustee
has assigned to Global Securities. At any time when fewer
than 100 of the reserved CUSIP numbers remain unassigned to
Global Securities, the Trustee will so advise the Company
and, if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Company will deliver a list of
such additional CUSIP numbers to the Trustee and DTC.
Registration: Each Global Security will be registered in the name of Cede
& Co., as nominee for DTC, on the security register
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 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 Note in the
account of such Participants. The ownership interest of
such beneficial owner in such 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 accompanied 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: The Trustee may deliver to DTC and the CUSIP Service Bureau
at any time a written notice of consolidation specifying (i)
the CUSIP numbers of two or more Outstanding Global
Securities that represent 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
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<PAGE>
Securities will be exchanged for a single replacement Global
Security and (iii) a new CUSIP number to be assigned to such
replacement Global Security. Upon receipt of such a notice,
DTC will send to its Participants (including the Trustee) a
written reorganization notice to the effect that such
exchange will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange date and
the 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, the Trustee will exchange such Global
Securities for a single Global Security bearing the new
CUSIP number and a new Interest Accrual Date, and the CUSIP
numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. Notwithstanding the
foregoing, if the Global Securities to be exchanged exceed
$__________ in aggregate principal amount, one Global
Security will be authenticated and issued to represent each
$__________ 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 from nine months
to [30] years from its date of issue.
Notice of The Trustee will give notice to DTC prior to each Redemption
Redemption and Date or Repayment Date (as specified in the Note), if any,
Repayment Dates: at the time and in the manner set forth in the Letter of
Representation.
Denominations: Book-Entry Notes will be issued in principal amounts of
$__________ or an integral multiple of $1,000 in excess
thereof. Global Securities will be denominated in principal
amounts not in excess of $__________. If one or more Book-
Entry Notes having an aggregate principal amount in excess
of $__________ would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be issued to represent each $__________
principal amount of such Book-Entry Note or Notes and an
additional Global Security will be 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-Entry Note or Notes will be assigned the same
CUSIP number.
Interest: General. Interest on each Book-Entry Note will accrue from
the Interest Accrual Date of the Global Security
representing such
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<PAGE>
Note. 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 Notes with respect to which the
Interest Reset Period is daily or weekly, interest payable
on any Interest Payment Date [(other than interest payable
on any date on which the principal thereof is payable, and,
if the Note is a Book-Entry Gap Note (as defined below),
other than interest payable on the first Interest Payment
Date after the Original Issue Date thereof)] will include
interest accrued through and including the Record Date
immediately preceding the Interest Payment Date, except that
at maturity or earlier redemption or repayment, the interest
payable will include interest accrued to, but excluding, the
Maturity Date or the date of redemption or repayment, as the
case may be. Interest payable at the maturity or upon
redemption or repayment 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
weekly bond report published by Standard & Poor's
Corporation.
Record Dates. The Record Date with respect to any Interest
Payment Date will be the date fifteen calendar days
immediately preceding such Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Book-Entry Notes [, other than
Amortizing Notes,] will be made semiannually on
_____________ ___ and _____________ ___ of each year, and at
maturity or upon any earlier redemption or repayment [and
principal and interest payments on Book-Entry Amortizing
Notes will be made semiannually on __________ __ and
__________ __ of each year or quarterly on __________ __,
__________ __, __________ __ and __________ __ of each year,
and at maturity (or on any redemption or repayment date)];
provided, however, that in the case of a Fixed Rate Book-
Entry Note issued between a Record Date and an Interest
Payment Date or on an Interest Payment Date, the first
interest payment will be made on the Interest Payment Date
following the next succeeding Record Date. If any Interest
Payment Date for a Fixed Rate Book-Entry Note is not a
Business Day, the payment due on such day will be made on
the next succeeding Business
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<PAGE>
Day and no interest will accrue on such payment for the
period from and after such Interest Payment Date.
Floating Rate Book-Entry Notes. Interest payments will be
made on Floating Rate Book-Entry Notes monthly, quarterly,
semiannually or annually. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest will be
payable, in the case of Floating Rate Book-Entry Notes with
a daily, weekly or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of
__________, __________, __________ and __________, as
specified pursuant to Settlement Procedure "A" below; in the
case of Floating Rate Book-Entry Notes with a quarterly
Interest Reset Date, on the third Wednesday of ____________,
__________, _________ and ___________ of each year; in the
case of Floating Rate Book-Entry Notes with a semiannual
Interest Reset Date, on the third Wednesday of the two
months specified pursuant to Settlement Procedure "A" below;
and in the case of Floating Rate Book-Entry Notes with an
annual Interest Reset Date, on the third Wednesday of the
month specified pursuant to Settlement Procedure "A" below;
provided however, that if an Interest Payment Date for
Floating Rate Book-Entry Notes would otherwise be a day that
is not a Business Day with respect to such Floating Rate
Book-Entry Notes, such Interest Payment Date will be the
next succeeding Business Day with respect to such Floating
Rate Book-Entry Notes, except in the case of a LIBOR Note
and such Business Day is in the next succeeding calendar
month, in which case 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 Record Date and the related Interest Payment Date
(a "Book-Entry Gap Note"), the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date, and in such case notwithstanding the
fact that an Interest Reset Date may occur prior to such
Interest Payment Date, the Initial Interest Rate will remain
in effect until the first Interest Reset Date occurring on
or subsequent to such Interest Payment Date.
Notice of Interest Payment and Record Dates. On the first
Business Day of __________, __________, __________ and
__________ of each year, the Trustee will deliver to the
Company and DTC a written list of 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 date upon which interest
is determined for Floating Rate Notes issued in book-entry
form,
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<PAGE>
the Calculation Agent will notify the Company, the Trustee
and Standard & Poor's Corporation of the interest rates
determined on such dates.
Calculation of Fixed Rate Book-Entry Notes. Interest on Fixed Rate
Interest: Book-Entry Notes (including interest for partial periods)
will be calculated on the basis of a year of twelve thirty-
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 such Notes. Interest on Floating Rate Book-Entry
Notes will be calculated on the basis of actual days elapsed
and a year of 360 days, except that, in the case of Treasury
Rate Notes, interest will be calculated on the basis of the
actual number of days in the year.
Payments of Payments of Interest Only. Promptly following each Record
Principal and Date, the Trustee will deliver to the Company and DTC a
Interest: written notice specifying by CUSIP number the amount of
interest to be paid on each Global Security other than an
Amortizing Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
maturity or earlier redemption or repayment) and the total
of such amounts. DTC will confirm the amount payable on each
such Global Security on such Interest Payment Date by
reference to the daily bond reports published by Standard &
Poor's Corporation. In the case of Amortizing Notes, the
Trustee will provide separate written notice to the Company
and to DTC prior to each Interest Payment Date at the time
and in the manner set forth in the Letter of Representation.
The Company will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment Date
(and, in the case of an Amortizing Note, principal and
interest) (other than at maturity), and the Trustee will pay
such amount to DTC at the times and in the manner set forth
below under "Manner of Payment."
Payments at Maturity or Upon Redemption or Repayment. On or
about the first Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of principal
and interest to be paid on each Global Security other than
an Amortizing Note maturing either at maturity or on a
redemption or repayment date in the following month. The
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 Date or redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the Trustee will
provide separate
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<PAGE>
written notice to the Company and to DTC prior to the
Maturity Date and any redemption or repayment date, as the
case may be, at the times and in the manner set forth in the
Letter of Representation. The Company will pay to the
Trustee, as the paying agent, the principal amount of such
Global Security, together with interest due at such Maturity
Date or redemption or repayment date. The Trustee will pay
such amounts to DTC at the times and in the manner set forth
below under "Manner of Payment."
Payments Not on Business Days. If any Interest Payment Date
or the Maturity Date or redemption or repayment date of a
Global Security representing Fixed Rate Book-Entry Notes is
not a Business Day, the payment due on such day will be made
on the next succeeding Business Day and no interest will
accrue on such payment for the period from and after such
Interest Payment Date, Maturity Date or redemption or
repayment date, as the case may be. If any Interest Payment
Date or the Maturity Date or redemption or repayment date of
a Global Security representing a Floating Rate Book-Entry
Note would otherwise fall on a day that is not a Business
Day, the payment due on such day will be made on the next
succeeding day that is a Business Day with respect to such
Notes with the same effect as if such Business Day were the
Interest Payment Date, Maturity Date or date of redemption
or repayment, as the case may be, except that, in the case
of Book-Entry LIBOR Notes, if such Business Day is in the
next succeeding calendar month, such Interest Payment Date,
Maturity Date or redemption or repayment date will be the
immediately preceding day that is a Business Day with
respect to such Book-Entry LIBOR Notes. Promptly after
payment to DTC of the principal and interest due on the
Maturity Date or redemption or repayment date of a Global
Security, the Trustee will cancel such Global Security in
accordance with the terms of the Indenture and deliver it to
the Company with a certificate of cancellation. [Upon
request/ On the first Business Day of each month], the
Trustee will deliver to the Company a written statement
indicating the total principal amount of outstanding Book-
Entry Notes as of the immediately preceding Business Day.
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest Payment
Date or at maturity or upon redemption or repayment will be
paid by the Company to the Trustee in funds available for
immediate use by the Trustee as of 9:30 a.m. (New York City
time) on such date. The Company will make such payment on
such Global Securities by wire transfer to the Trustee or by
instructing the
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Trustee to withdraw funds from an account maintained by the
Company at the Trustee. The Company will confirm such
instructions in writing to the Trustee. Prior to 10 a.m.
(New York City time) on each Maturity Date or redemption or
repayment date or, if either such date is not a Business
Day, as soon as possible thereafter, following receipt of
such funds from the Company the Trustee will pay by separate
wire transfer (using Fedwire message entry instructions in a
form previously specified by 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
Global Securities on any Maturity Date or redemption or
repayment date. On each Interest Payment Date or, if any
such date is not a Business Day, as soon as possible
thereafter, interest payments and, in the case of Amortizing
Notes, interest and principal payments will be made to DTC
in same day funds in accordance with existing arrangements
between the Trustee and DTC. Thereafter 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. Neither the Company nor the Trustee will have any
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 directly to the
beneficial owner of such Note.
Preparation of If any order to purchase a Book-Entry Note is accepted by or
Pricing on behalf of the Company, the Company will prepare a pricing
Supplement: supplement reflecting the terms of such Note and will
arrange to file such Pricing Supplement with the Commission
in accordance with the applicable paragraph of Rule 424(b)
under the Act and will deliver the number of copies of such
Pricing Supplement to the relevant Agent as such Agent
requests by the close of business on the following Business
Day. The relevant Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agent receiving such Pricing Supplement will affix the
Pricing
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Supplement to a Prospectus prior to their use. Outdated
Pricing Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
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 Note will
constitute "settlement" with respect to such Note. All
orders accepted by the Company will be settled on the third
Business Day following such acceptance pursuant to the
timetable for settlement set forth below unless the Company
and the purchaser agree to settlement on another day, which
will be no earlier than the next Business Day.
Settlement Settlement Procedures with regard to each Book-Entry Note
Procedures: sold by the Company to or through an agent will be as
follows (unless otherwise specified pursuant to a Terms
Agreement):
A. The relevant Agent will advise the Company by facsimile
transmission or other acceptable means that such Note
is a Book-Entry Note and 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, whether such Note will pay interest
annually or semi-annually and whether such Note is
an Amortizing Note and, if so, the Amortization
Schedule, or, in the case of a Floating Rate Book-
Entry Note, the Initial Interest Rate (if known at
such time), Interest Payment Date(s), Interest
Payment Period, Calculation Agent, Base Rate,
Index Maturity, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum Interest
Rate (if any), Maximum Interest Rate (if any) and
the Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time.
6. Price.
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7. Agent's commission, if any, determined as provided
in the Agreement.
8. Net proceeds to the Company.
9. Whether the Note is an OID Note, and if it is an
OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
10. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above. The Trustee will then assign a CUSIP number to
the Global Security representing such Note and will
notify the Company and the Agent of such CUSIP number
by telephone or electronic transmission (confirmed in
writing) as soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
relevant Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement Procedure
"A".
2. The Initial Interest Payment Date for such Note,
the number of days by which such date succeeds the
related DTC Record Date (which in the case of
Floating Rate Notes which reset daily or weekly,
will be the date five calendar days immediately
preceding the applicable Interest Payment Date
and, in the case of all other Notes, will be the
Record Date as defined in the Note) and, if known,
the amount of interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at such
time) and whether such Note is an
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Amortizing Note (by an appropriate notation in the
comments field of DTC's Participant Terminal
System).
5. The DTC participant numbers of the institutions
through which the Participant will hold the Book-
Entry Note.
D. The Trustee will complete and authenticate the Global
Security representing such Note in accordance with the
terms of the written order of the Company then in
effect.
E. DTC will credit such Note to the Trustee's participant
account at DTC.
F. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to the relevant Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's settlement
account for an amount equal to the price of such Note
less such Agent's commission, if any. The entry of
such a deliver order will constitute a representation
and warranty by the Trustee to DTC that (a) the Global
Security representing such Book-Entry Note has been
issued and authenticated and (b) the Trustee is holding
such Global Security pursuant to the Medium-Term Note
Certificate Agreement between the Trustee and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Note to such Agent's participant
account and credit such Note to the participant account
of the Participant with respect to such Note and (ii)
to debit the settlement account of such Participant and
credit the settlement account of such Agent for an
amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. The Trustee, upon confirming receipt of such funds,
will credit to the U.S. dollar account of the Company
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maintained at a bank in New York City, notified to the
Trustee from time to time, in funds available for
immediate use in the amount transferred to the Trustee,
in accordance with Settlement Procedure "F".
J. Unless the relevant Agent purchased such Note as
principal, such Agent will confirm the purchase of such
Note to the purchaser either by transmitting to the
Participant with respect to such Note a confirmation
order through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of Notes
Outstanding as of that date under the Indenture and
setting forth a brief description of any sales of which
the Company has advised the Trustee but which have not
yet been settled.
Settlement: For sales by the Company of Book-Entry Notes for settlement
on the first Business Day after the sale date, Settlement
Procedures "A" through "J" set forth above will be completed
as soon as possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
---------- ----
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 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" will
be completed as soon as practicable but no later than 11:00
a.m., 12 noon and 2:00 p.m., respectively, on the first
Business Day after the sale date. 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" will be
completed as soon as such rate has been determined but no
later than 12 noon and 2:00 p.m., respectively, on the
second Business Day before the settlement
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date. Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing deadlines
and upon the occurrence of any of the other events specified
in the SDFS operating procedures in effect on the settlement
date. If settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee, after receiving notice from the
Company or the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message to such
effect by no later than 2:00 p.m. on the Business Day
immediately preceding the scheduled settlement date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "F", the Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note to the
Trustee's participant account; provided, that the Trustee's
participant account contains a principal amount of the
Global Security representing such 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," make
appropriate entries in the Trustee's records and send such
canceled Global Security to the Company. The CUSIP number
assigned to such Global Security will, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. 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, the
Trustee will exchange such Global Security for two Global
Securities, one of which will represent such Book-Entry Note
or Notes and will be canceled immediately after issuance and
the other of which will represent the remaining Book-Entry
Notes previously represented by the surrendered Global
Security and will bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participant 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 Participant and, in turn, the relevant
Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "F" and "G", respectively.
Thereafter, the Trustee will deliver the withdrawal message
and take the related actions described in the preceding
paragraph.
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Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any action
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, the Trustee will provide,
in accordance with Settlement Procedures "D" and "F", for
the authentication and issuance of a Global Security
representing the Book-Entry Notes to be represented by such
Global Security and will make appropriate entries in its
records.
Posting Rates by The Company and the Agents will discuss from time to time
Company: the rates of interest per annum to be borne by and the
maturity of Securities that may be sold as a result of the
solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for
an offering period ("posting"). If the Company decides to
change already posted rates, it will promptly advise the
Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Trustee Not To Nothing herein will be deemed to require the Trustee to
Risk Funds: risk or expend its own funds in connection with any payments
to the Company, the Agents, DTC or any holders of Notes, it
being understood by all parties that payments made by the
Trustee to the Company, the Agents, DTC or any holders of
Notes will be made only to the extent that funds are
provided to the Trustee for such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar 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 any portion thereof) issued
subsequently upon exchange of a Certificated Note, or in
lieu of a destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note. [No Note issued
between a Record Date and the related Interest Payment Date
will be issued as a Certificated Note within the meaning of
the Indenture.]
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Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and A Certificated Note may be presented for transfer or
Exchanges: exchange at the principal corporate trust office of the
Trustee. Certificated 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 from nine
months to [30] years from its date of issue.
Currency: The currency denomination with respect to any Certificated
Note and the currency of payment of interest and principal
with respect to any such Certificated Note will be as set
forth therein and in the applicable Pricing Supplement.
Denominations: Unless otherwise provided in a Prospectus Supplement, the
denomination of any Certificated Note will be a minimum of
$__________ (or in the case of Notes not denominated in U.S.
dollars, the equivalent thereof in the applicable foreign
currency or composite currency, rounded down to the nearest
1,000 units of such foreign currency or composite currency)
or any amount in excess thereof that is an integral multiple
of $1,000 (or in the case of Notes not denominated in U.S.
dollars, 1,000 units of such foreign currency or composite
currency).
Interest: General. Interest on each Certificated Note will accrue
from the Original Issue Date of such Note for the first
interest period and from the most recent date to which
interest has been paid for all subsequent interest periods.
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 Floating Rate Notes with respect to which the
Interest Reset Period is daily or weekly, interest payable
on any Interest Payment Date (other than interest payable on
any date on which principal thereof is payable, and, if the
Note is a Certificated Gap Note (as defined below), other
than interest payable on the first Interest Payment Date
after the Original Issue Date thereof) will include interest
accrued through and including the Record Date immediately
preceding the Interest Payment Date, except that at maturity
or earlier redemption or repayment, the interest payable
will include interest accrued to, but excluding, the
Maturity Date or the date of redemption or repayment, as the
case may be.
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Record Dates. The Record Date with respect to any Interest
Payment Date in respect of a Certificated Note will be the
date fifteen calendar days immediately preceding such
Interest Payment Date.
Fixed Rate Certificated Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes, other than
Amortizing Notes, will be made semiannually on
_______________ ___ and _______________ ___ of each year (or
if so indicated in such Note, annually on _______________ __
of each year), and at maturity or upon any earlier
redemption or repayment and principal and interest payments
on Amortizing Certificated Notes will be made semiannually
on _______________ __ and _______________ __ of each year or
quarterly on _______________ __, _______________ __,
_______________ __ and _______________ __ of each year, and
at maturity (or on any redemption or repayment date);
provided, however, that in the case of a Fixed Rate
Certificated Note issued between a Record Date and an
Interest Payment Date or on an Interest Payment Date, the
first interest payment will be made on the Interest Payment
Date following the next succeeding Record Date.
Floating Rate Certificated Notes. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semiannually or annually. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest will be
payable, in the case of Floating Rate Certificated Notes
with a daily, weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third Wednesday of
_______________, _______________, _______________ and
_______________, as specified pursuant to Settlement
Procedure "A" below; in the case of Floating Rate
Certificated Notes with a quarterly Interest Reset Date, on
the third Wednesday of _______________, _______________,
_______________ and _______________ of each year; in the
case of Floating Rate Certificated Notes with a semiannual
Interest Reset Date, on the third Wednesday of the two
months specified pursuant to Settlement Procedure "A" below;
and in the case of Floating Rate Certificated Notes with an
annual Interest Reset Date, on the third Wednesday of the
month specified pursuant to Settlement Procedure "A" below;
provided, however, that if an Interest Payment Date for
Floating Rate Certificated Notes would otherwise be a day
that is not a Business Day with respect to such Floating
Rate Certificated Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated
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Notes, except in the case of a LIBOR Note and such Business
Day is in the next succeeding calendar month, in which case
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 Record Date
and the related Interest Payment Date (a "Certificated Gap
Note"), the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date, and in such case, notwithstanding the fact that an
Interest Reset Date may occur prior to such Interest Payment
Date, the Initial Interest Rate will remain in effect until
the first Interest Reset Date occurring on or subsequent to
such Interest Payment Date.
Notice of Interest Payment and Record Dates. On the first
Business Day of _______________, _______________,
_______________ and _______________ of each year, the
Trustee will deliver to the Company a written list of Record
Dates and Interest Payment Dates that will occur with
respect to Certificated Notes during the six-month period
beginning on such first Business Day. Promptly after each
date upon which interest is determined for Floating Rate
Notes issued in certificated form, the Calculation Agent
will notify the Company and the Trustee of the interest
rates determined on such dates.
Calculation of Fixed Rate Certificated Notes. Interest on Fixed Rate
Interest: Certificated Notes (including interest for partial periods)
will be calculated on the basis of a year of twelve thirty-
day months.
Floating Rate Certificated Notes. Interest rates on
Floating Rate Certificated Notes will be determined as set
forth in the form of such Notes. Interest on Floating Rate
Certificated Notes will be calculated on the basis of actual
days elapsed and a year of 360 days, except that, in the
case of Treasury Rate Notes, interest will be calculated on
the basis of the actual number of days in the year.
Payments of The Company will pay the Trustee, as paying agent, the
Principal and principal amount of each Certified Note (other than the
Interest: interest on an Amortizing Note), together with interest due
thereon, at its Maturity Date or upon redemption or
repayment of such Note in funds available for immediate use
by the Trustee. In the case of an Amortizing Note, the
Company will pay the Trustee, as paying agent, the principal
amount due on such Note on such date, together with interest
due thereon, at its Maturity Date or upon redemption or
repayment of such Note on such date in funds available for
immediate use by the Trustee. The Trustee will pay such
amount to the holder of such Note at its Maturity
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Date or upon redemption or repayment of such Note upon
presentation and surrender of such Note to the Trustee.
Such payment, together with payment of interest due at
maturity or upon redemption or repayment, will be made in
funds available for immediate use by the holder of such
Note. Promptly after such presentation and surrender, the
Trustee will cancel such Certificated Note in accordance
with the terms of the Indenture and deliver it to the
Company with a certificate of cancellation. Unless
otherwise specified in the applicable Pricing Supplement,
all interest payments on a Certificated Note or, in the case
of an Amortizing Certificated Note, payments of principal
and interest (other than interest (or interest and
principal) due at maturity or upon redemption or repayment)
will be made by check drawn on the Trustee (or another
person appointed by the Trustee) and mailed by the Trustee
to the person entitled thereto as provided in such Note and
the Indenture; provided, however, that (i) the holder of
$___________ or more of Notes having the same Interest
Payment Date will be entitled to receive payment by wire
transfer of immediately available funds and (ii) unless
otherwise specified in the applicable Pricing Supplement or
unless alterative arrangements are made, payments on Notes
in a currency other than U.S. dollars will be made by wire
transfer of immediately available funds to an account
maintained by the payee with a bank located outside the
United States and, with respect to clauses (i) and (ii)
above, the holder of such Notes will provide the Trustee
with appropriate and timely wire transfer instructions.
Promptly after each Record Date, the Trustee will deliver to
the Company a written notice specifying the amount of
interest to be paid on each Certificated Note other than an
Amortizing Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
maturity or any earlier redemption or repayment date) and
the total of such amounts. In the case of Amortizing Notes,
the Trustee will provide separate written notice to the
Company specifying the amount of interest and principal to
be paid on each Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date coinciding
with maturity or any earlier redemption or repayment date)
and the total of such amounts. Interest at maturity or upon
redemption or repayment will be payable to the person to
whom the payment of principal is payable. On or about the
first Business Day of each month, the Trustee will deliver
to the Company a written list of principal and interest, to
the extent ascertainable, to be paid on each Certificated
Note including Amortizing Notes maturing or to be redeemed
or repaid in the following month. The Trustee will be
responsible for
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withholding taxes on interest paid on Certificated Notes as
required by applicable law.
If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Fixed Rate Certificated
Note is not a Business Day, the payment due on such day will
be made on the next succeeding Business Day and no interest
will accrue on such payment for the period from and after
such Interest Payment Date, Maturity Date or redemption or
repayment date, as the case may be. If any Interest Payment
Date or the Maturity Date or redemption or repayment date of
a Floating Rate Certificated Note would otherwise fall on a
day that is not a Business Day with respect to such Note,
the payment due on such day will be made on the next
succeeding day that is a Business Day with respect to such
Note with the same effect as if such Business Day were the
stated Interest Payment Date, Maturity Date or date of
redemption or repayment, as the case may be, except that, in
the case of Certificated LIBOR Notes, if such Business Day
is in the next succeeding calendar month, such Interest
Payment Date, Maturity Date or redemption or repayment date
will be the immediately preceding day that is a Business
Day with respect to such Certificated LIBOR Notes.
Preparation of If any order to purchase a Certified Note is accepted by or
Pricing on behalf of the Company, the Company will prepare a Pricing
Supplement: Supplement reflecting the terms of such Note and will
arrange to file such Pricing Supplement with the Commission
in accordance with the applicable paragraph of Rule 424(b)
under the Act and will deliver the number of copies of such
Pricing Supplement to the relevant Agent as such Agent will
request by the close of business on the following Business
Day. The relevant Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agent receiving such Pricing Supplement will affix the
Pricing Supplement to a Prospectus prior to their use.
Outdated Pricing Supplements, and the Prospectuses to which
they are attached (other than those retained for files),
will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for an authenticated Certificated Note delivered to
the relevant Agent and such Agent's delivery of such Note
against receipt of immediately available funds will
constitute"settlement" with respect to such Note. All
orders accepted by the Company will be settled on the third
Business Day following such
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acceptance pursuant to the timetable for settlement set
forth below unless the Company and the purchaser agree to
settlement on another day, which will be no earlier than the
next Business Day.
Settlement Settlement Procedures with regard to each Certificated Note
Procedures: sold by the Company to or through an Agent will be as
follows (unless otherwise specified pursuant to a Terms
Agreement):
A. The relevant Agent will advise the Company by facsimile
transmission or other acceptable means that such Note
is a Certificated Note and of the following settlement
information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payments of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
4. Currency or currency unit, principal amount and, if
different, currency in which payments of principal
and interest may be made.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note, the
Interest Rate, whether such Note will pay interest
annually or semi-annually and whether such Note is
an Amortizing Note and, if so, the Amortization
Schedule, or, in the case of a Floating Rate
Certificated Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
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9. Price.
10. Agent's commission, if any, determined as provided
in the Agreement.
11. Denominations.
12. Net proceeds to the Company.
13. Whether the Note is an OID Note, and if it is an
OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon Acceleration
(and, if so, the Issue Price).
14. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above.
C. The Company will deliver to the Trustee a pre-printed
four-ply packet for such Note, which packet will
contain the following documents in forms that have been
approved by the Company, the relevant Agent and the
Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such 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 and evidence that
instructions have been given by such Agent for payment
to the account of the Company maintained at the
Trustee, New York, New York (or, with respect to Notes
payable in a Specified Currency other than U.S.
dollars, to an account maintained at a bank selected by
the Company notified to
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the relevant Agent from time to time in writing) in
funds available for immediate use, of an amount equal
to the price of such Note less such Agent's commission,
if any. In the event that the instructions given by
such Agent for payment to the account of the Company
are revoked, the Company will as promptly as possible
wire transfer to the account of such Agent an amount of
immediately available funds equal to the amount of such
payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain
the acknowledgment of receipt of such Note by retaining
Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Periodically, the Trustee will also
send to the Company a statement setting forth the
principal amount of the Notes outstanding as of that
date under the Indenture and setting forth a brief
description of any sales of which the Company has
advised the Trustee but which have not yet been
settled.
Settlement For sales by the Company of Certificated Notes to or through
Procedures an Agent (unless otherwise specified pursuant to a Terms
Timetables: Agreement), Settlement Procedures "A" through "F" set forth
above will be completed on or before the respective times
(New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 p.m. on day before settlement date
B 3:00 p.m. on day before settlement date
C-D 2:15 p.m. on settlement date
E 3:00 p.m. on settlement date
F 5:00 p.m. on settlement date
Failure to If a purchaser fails to accept delivery of and make payment
Settle: for any Certificated Note, the relevant Agent will notify
the Company and the Trustee by telephone and return such
Note to the Trustee. Upon receipt of such notice, the
Company will immediately wire transfer to the account of
such Agent an amount equal to the amount previously credited
thereto in respect of such Note. Such wire transfer will be
made on the
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<PAGE>
settlement date, if possible, and in any event not later
than the Business Day following the settlement date. If the
failure has occurred for any reason other than a default by
such Agent in the performance of its obligations hereunder
and under the Agreement, then the Company will reimburse
such Agent or the 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 (such
reimbursement for loss of the use of such funds to be based
on the federal funds effective rate then in effect).
Immediately upon receipt of the Certificated Note in respect
of which such failure occurred, the Trustee will mark such
Note "canceled", make appropriate entries in the Trustee's
records and send such Note to the Company.
Posting Rates The Company and the Agents will discuss from time to time
by Company: the rates of interest per annum to be borne by and the
maturity of Securities that may be sold as a result of the
solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for
an offering period ("posting"). If the Company decides to
change already posted rates, it will promptly advise the
Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Trustee Not to Nothing herein shall be deemed to require the Trustee to
Risk Funds: risk or expend its own funds in connection with any payments
to the Company, the Agents or any holders of Notes, it being
understood by all parties that payments made by the Trustee
to the Company, the Agents or any holders of Notes will be
made only to the extent that funds are provided to the
Trustee for such purpose.
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<PAGE>
EXHIBIT 4.1
____________________________________________________
EQUITABLE RESOURCES, INC.
To
BANK OF MONTREAL TRUST COMPANY,
Trustee
________________
INDENTURE
Dated as of June __, 1996
________________
Debt Securities
____________________________________________________
<PAGE>
TABLE OF CONTENTS/1/
__________
PAGE
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company. . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control. . . . . . . . . . . . . . . 2
Attributable Debt . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order. . . . . . . . 3
Consolidated Net Tangible Assets. . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . 4
Debt. . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . 4
Depositary. . . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . 4
interest. . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . 4
Lien. . . . . . . . . . . . . . . . . . . . . . 4
Maturity. . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . 5
Opinion of Counsel. . . . . . . . . . . . . . . 5
Original Issue Discount Security. . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . 5
Paying Agent. . . . . . . . . . . . . . . . . . 6
Person. . . . . . . . . . . . . . . . . . . . . 6
Place of Payment. . . . . . . . . . . . . . . . 6
Predecessor Security. . . . . . . . . . . . . . 6
Principal Property. . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . 7
Redemption Price. . . . . . . . . . . . . . . . 7
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/1/ This table of contents shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
Regular Record Date . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . 7
Restricted Subsidiary . . . . . . . . . . . . . 7
Sale and Leaseback Transaction. . . . . . . . . 7
Securities. . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar. . . . 8
Special Record Date . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . 8
Subsidiary. . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . 8
Vice President. . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions. . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee. . . . . 9
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company . . . . . 11
SECTION 106. Notice to Holders; 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. . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . 13
SECTION 114. No Security Interest Created. . . . . . . . . . 13
SECTION 115. Limitation on Individual Liability. . . . . . . 14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Face of Security. . . . . . . . . . . . 15
SECTION 203. Form of Reverse of Security . . . . . . . . . . 17
SECTION 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . 21
SECTION 302. Denominations . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . 24
SECTION 304. Temporary Securities. . . . . . . . . . . . . . 26
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<PAGE>
SECTION 305. Registration; Registration of Transfer
and Exchange . . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 29
SECTION 307. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . 30
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 32
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . 32
SECTION 310. Computation of Interest . . . . . . . . . . . . 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . . . . 33
SECTION 402. Application of Trust Money. . . . . . . . . . . 34
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . 34
SECTION 502. Acceleration of Maturity; Rescission
and Annulment. . . . . . . . . . . . . . . 37
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . 38
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . 39
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . 40
SECTION 506. Application of Money Collected. . . . . . . . . 40
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . 40
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest. . 41
SECTION 509. Restoration of Rights and Remedies. . . . . . . 41
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . 42
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . 42
SECTION 512. Control by Holders. . . . . . . . . . . . . . . 42
SECTION 513. Waiver of Defaults. . . . . . . . . . . . . . . 43
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . 43
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . 44
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<PAGE>
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . 44
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . 44
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . 45
SECTION 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . 46
SECTION 605. May Hold Securities . . . . . . . . . . . . . . 46
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . 47
SECTION 607. Compensation and Reimbursement. . . . . . . . . 47
SECTION 608. Disqualification; Conflicting Interests . . . . 48
SECTION 609. Corporate Trustee Required; Eligibility . . . . 48
SECTION 610. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . 48
SECTION 611. Acceptance of Appointment by Successor. . . . . 50
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 51
SECTION 613. Preferential Collection of Claims
Against Company. . . . . . . . . . . . . . 52
SECTION 614. Authenticating Agents . . . . . . . . . . . . . 52
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . 54
SECTION 702. Preservation of Information;
Communications to Holders. . . . . . . . . 55
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . 55
SECTION 704. Reports by Company. . . . . . . . . . . . . . . 55
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . . . . 56
SECTION 802. Successor Substituted . . . . . . . . . . . . . 57
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<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . 57
SECTION 902. Supplemental Indentures With Consent
of Holders . . . . . . . . . . . . . . . . 58
SECTION 903. Execution of Supplemental Indentures. . . . . . 60
SECTION 904. Effect of Supplemental Indentures . . . . . . . 60
SECTION 905. Conformity With Trust Indenture Act . . . . . . 60
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . 60
SECTION 907. Notice of Supplemental Indenture. . . . . . . . 60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. . . 61
SECTION 1002. Maintenance of Office or Agency . . . . . . . . 61
SECTION 1003. Money for Payments to be
Held in Trust. . . . . . . . . . . . . . . 61
SECTION 1004. Limitation on Liens . . . . . . . . . . . . . . 63
SECTION 1005. Limitation on Sale and Leaseback
Transactions . . . . . . . . . . . . . . . 66
SECTION 1006. Existence . . . . . . . . . . . . . . . . . . . 67
SECTION 1007. Maintenance of Properties . . . . . . . . . . . 67
SECTION 1008. Payment of Taxes and Other Claims . . . . . . . 68
SECTION 1009. Statement as to Compliance. . . . . . . . . . . 68
SECTION 1010. Waiver of Certain Covenants . . . . . . . . . . 68
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . 69
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . 69
SECTION 1103. Selection by Trustee of Securities to be
Redeemed . . . . . . . . . . . . . . . . . 69
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . 70
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . 70
SECTION 1106. Securities Payable on Redemption Date . . . . . 71
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . 71
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<PAGE>
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . 71
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . 72
SECTION 1203. Redemption of Securities for Sinking Fund . . . 72
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article. . . . . . . . . . . . 73
SECTION 1302. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations . . . . . . . . . . 73
SECTION 1303. Deposited Moneys and U.S. Government Obligations
to be Held in Trust. . . . . . . . . . . . 75
SECTION 1304. Repayment to Company. . . . . . . . . . . . . . 75
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . 76
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . 76
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . 77
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<PAGE>
INDENTURE, dated as of June __, 1996, between EQUITABLE RESOURCES,
INC., a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (herein called the "Company"), having its principal
executive offices at 420 Boulevard of the Allies, Pittsburgh, Pennsylvania
15219, and BANK OF MONTREAL TRUST COMPANY, a New York banking corporation,
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally
<PAGE>
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms used principally in Article Six or Article Thirteen are
defined in those Articles.
"Act", when used with respect to any Holder, 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.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of any particular time, the present value (discounted at the rate of
interest implicit in the terms of the lease involved in such Sale and Leaseback
Transaction, as determined in good faith by the Company) of the obligation of
the lessee thereunder for net rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, services, insurance,
taxes, assessments, water rates or similar charges and any amounts required to
be paid by such lessee thereunder contingent upon monetary inflation or the
amount of sales, maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges) during the remaining term of such lease (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means the board of directors of the Company or
the executive committee thereof or any other committee appointed by that board
to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the
-2-
<PAGE>
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated to
close by law or executive order.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"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 Vice
Chairman of the Board, if any, its President or any Vice President, and by its
Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary,
and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets of the Company and its consolidated subsidiaries (less applicable
reserves) after deducting therefrom (a) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles and
(b) all current liabilities except for current maturities of long-term debt,
current maturities of capitalized lease obligations, indebtedness for borrowed
money having a maturity of less than 12 months from the date of the most recent
audited consolidated balance sheet of the Company, but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower, and deferred income taxes which are classified as current liabilities,
all as reflected in the audited consolidated balance sheet contained in the
Company's most recent annual report to its shareholders under Rule 14a-3 of the
Securities Exchange Act of 1934, as amended, prior to the time as of which
"Consolidated Net Tangible Assets" is being determined.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of
-3-
<PAGE>
execution of this Indenture is located at 77 Water Street, New York, New York
10005.
"corporation" means a corporation, association, company, joint stock
company, limited liability company or business trust.
"Debt" means indebtedness for borrowed money.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, the Person
designated as Depositary for such series by the Company pursuant to Section 301
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and "Depositary" shall mean or include each Person
who is a Depositary hereunder.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security evidencing all or part of the
Securities of any series and issued to a Depositary in accordance with Section
303 and bearing the legend prescribed in the sixth paragraph of Section 303.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of a 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.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, security interest or lien.
-4-
<PAGE>
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of such principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
thereof or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, if any, the President or any Vice
President, and by the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1007 shall
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, and who shall be reasonably
acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for the payment or redemption of which moneys in the
necessary amount have been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided, that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made or Securities from its obligations with respect to which the Company
shall have been discharged; and
(iii) 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 that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
-5-
<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means, except as provided in Article Six, any individual,
corporation, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of such series are payable as specified as
contemplated by Section 301.
"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
-6-
<PAGE>
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing plant or production,
transportation or marketing facility or other similar facility located within
the United States of America (other than its territories and possessions) and
owned by, or leased to, the Company or any Restricted Subsidiary, the book value
of the real property, plant and equipment of which (as shown, without deduction
of any depreciation reserves, on the books of the owner or owners) is not less
than 1.5% of Consolidated Net Tangible Assets as of the date on which such
facility is acquired or a leasehold interest therein is acquired.
"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.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary substantially all the
property of which is located, or substantially all the business of which is
carried on, within the United States of America (other than its territories and
possessions) which shall at the time, directly or indirectly, through one or
more Subsidiaries or in combination with one or more other Subsidiaries or the
Company, own or be a lessee of a Principal Property.
"Sale and Leaseback Transaction" has the meaning specified in Section
1005.
"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.
"Special Record Date" for the payment of any Defaulted Interest 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 any 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 such interest is due and payable.
"Subsidiary" means, with respect to the Company, a corporation of
which more than 50% of the total voting power of the capital stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
its directors is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries or by the Company and one or more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended and in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor or additional Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of such series.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and
-8-
<PAGE>
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) 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.
-9-
<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; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be 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 agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of any series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 3Oth day (or, if
later, the date of the most recent list of Holders of Securities of such series
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one
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<PAGE>
or more series of Securities, only the Holders of Securities of such series on
such date (or their duly designated proxies) shall be entitled to give or take,
or vote on, the relevant action. Notwithstanding the foregoing, the Company
shall not set a record date for, and the provisions of this paragraph shall not
apply with respect to, any Act by the Holders pursuant to Section 501, 502 or
512.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
any such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, including via facsimile transmission to (212) 701-7684,
or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it, Attention: __________________, at the address of its
principal executive offices specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company or via facsimile transmission to (412) ___-____.
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<PAGE>
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail any notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict With Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture only as so modified or excluded, as the case
may be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind or inure to the benefit of its successors and assigns, whether so expressed
or not.
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<PAGE>
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Security Registrar, any Paying Agent, any Authenticating Agent
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 Commonwealth of Pennsylvania, without regard
to the conflicts of law rules of said Commonwealth; provided, however, that the
rights, duties and obligations of, and the standard of care for, the Trustee
shall be governed by the laws of the State of New York, without regard to the
conflicts of law rules of said State.
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 of the Securities of any series that 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; provided, that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be, to such Business Day if such payment is
made or duly provided for on such Business Day.
SECTION 114. No Security Interest Created.
----------------------------
Nothing in this Indenture or in any Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.
-13-
<PAGE>
SECTION 115. Limitation on Individual Liability.
----------------------------------
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or any successor Person, either directly or through the Company, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, shareholders, officers or directors, as such, of
the Company or any successor Person, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any Security or
implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
shareholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any Security or
implied therefrom, are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issuance of
such Security.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Securities of each series and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this Article, or
in such other form as shall be established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with any law or with the rules of any securities
exchange on which such Securities are listed or as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified
-14-
<PAGE>
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The definitive Securities of any series shall be printed, lithographed
or engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities of such series may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code of 1986, as
amended, and the regulations thereunder]
EQUITABLE RESOURCES, INC.
______________________________
No. ______ $___________
Equitable Resources, Inc., a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
____________________________, or registered assigns, the principal sum of
_____________________ Dollars on _____________________________ [if the Security
is to bear interest prior to the Maturity, insert--, and to pay interest thereon
from ________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ________ and _______ in
each year, commencing _________ at the rate of ___% per annum, until the
principal hereof is paid or made available for payment [if applicable, insert--,
and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of _____% per annum on any overdue principal and
premium and on any overdue installment of interest]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the __________ or
__________ (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice thereof
-15-
<PAGE>
having been given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ______% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of ______% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such interest has
been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in _______, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert --; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register if this Security is not a Global Security.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-16-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
EQUITABLE RESOURCES, INC.
By____________________________________
Attest:
____________________________________
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of June __, 1996 (herein called the
"Indenture"), between the Company and Bank of Montreal Trust Company, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$___________].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on ____________ in any year commencing with the year ________ and ending
with the year ________ through operation of the sinking fund for this series at
a Redemption Price equal to 100% of the principal amount, and (2)] at any time
[on or after ____________________, ______], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before
_________________, __%, and if redeemed] during the 12-month period beginning
__________ of the years indicated,
-17-
<PAGE>
<TABLE>
<CAPTION>
====================================
Redemption Redemption
Year Price Year Price
- ------ ---------- ---- ----------
<S> <C> <C> <C>
- -----------------------------------
- -----------------------------------
- -----------------------------------
===================================
</TABLE>
and thereafter at a Redemption Price equal to _______% of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ______ in any year
commencing with the year ______ and ending with the year ______ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ______], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning _______ of the years
indicated,
<TABLE>
<CAPTION>
=================================================
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ------ ----------------- ----------------------
<S> <C> <C>
- -------------------------------------------------
- -------------------------------------------------
- -------------------------------------------------
=================================================
</TABLE>
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with
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<PAGE>
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to ______,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
________ in each year beginning with the year ________ and ending with the year
_______ of [not less than $________ ("mandatory sinking fund") and not more
than] $________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert--In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert--
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that then payment of such interest shall be legally enforceable),
all of the Company's obligations in respect
-19-
<PAGE>
of the payment of the principal of and interest, if any, on the Securities of
this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
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No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Bank of Montreal Trust Company,
as Trustee
By_________________________________
Authorized Signature
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
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(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, 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;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Interest Payment
Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
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(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of the series as to which such election
is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502; and
(14) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
-------------
The Securities of each series shall be issuable only in registered
form without coupons and only in denominations of $1,000 and any integral
multiple thereof except as otherwise
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specified as contemplated by Section 301. Securities shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Company executing the same may determine with the
approval of the Trustee.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, if any, its President or
one of its Vice Presidents, under its corporate seal or a facsimile thereof
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall either at one time or from time to time pursuant to
such instructions as may be described therein authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
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 by the Company in the manner and subject to any
conditions specified in such
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<PAGE>
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
If the Securities are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall authenticate and deliver one or more Global Securities that (i) shall
represent an aggregate amount equal to the aggregate principal amount of the
Outstanding Securities to be represented by one or more Global Securities, (ii)
shall be registered in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary,
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<PAGE>
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect (or in the form required by such Depositary): "Unless and until
it is exchanged in whole or in part for the individual Securities represented
hereby, this Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary for a Global Security must, at all times while it
serves as such Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Any such temporary Security
may be in global form, representing all or a portion of the Outstanding
Securities. Every such temporary Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Security or Securities in lieu of which it is issued.
If temporary Securities of any series are issued, the Company will
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 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 one or more
definitive Securities of the same series of a like aggregate principal amount in
authorized denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
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<PAGE>
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Securities represented thereby
pursuant to this Section 304 or Section 305, the temporary Global Security shall
be endorsed by the Trustee to reflect the reduction of the principal amount
evidenced thereby, whereupon the principal amount of such temporary Global
Security shall be reduced for all purposes by the amount so exchanged and
endorsed.
SECTION 305. Registration; Registration
of Transfer and Exchange.
------------------------
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers and exchanges of Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers and exchanges of Securities as herein
provided. At all reasonable times, upon reasonable notice, the Security
Register shall be open for inspection by the Company.
Upon surrender for registration of transfer of any Security of any
series, at the office or agency 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 any authorized denominations and of a like aggregate
principal amount.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for the individual Securities represented
thereby, a Global Security representing all or a portion of the Securities of
any series may not be transferred except as a whole by the Depositary to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denominations and of a
like aggregate principal amount, upon surrender of the Securities to be
exchanged at the office or agency maintained for that purpose for such series.
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.
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<PAGE>
(b) If at any time the Depositary for the Securities of any series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of any series shall no longer be eligible under Section 303, the
Company shall appoint a successor Depositary. If a successor Depositary for the
Securities of any series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series, will
authenticate and deliver, individual Securities of such series in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that
individual Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, or if an Event of Default has occurred and is continuing with
respect to such series, the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Securities
of such series, will authenticate and deliver, individual Securities of such
series in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing the Securities of such series in
exchange for such Global Security or Securities.
The Depositary for the Securities of any series may surrender a Global
Security in exchange in whole or in part for individual Securities of such
series on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to each Person specified by the Depositary a new individual
Security or Securities of such series of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(ii) to the Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of individual Securities
of such series delivered to Holders thereof.
Upon the exchange of a Global Security for individual Securities of
any series, such Global Security shall be canceled by the Trustee. Individual
Securities of such series issued in exchange for a Global Security pursuant to
this Section shall be
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<PAGE>
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are so
registered.
(c) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities except as provided in Section 306. 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, 906 or
1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee
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<PAGE>
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including, without limitation, 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 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.
SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, 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. Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, at the option of the Company, interest
on Securities of any series will be paid by mailing checks to the addresses of
the Holders thereof as such addresses shall appear in the Securities Register if
such Securities are not represented by a Global Security and interest on any
Global Security will be paid by wire transfer of immediately available funds to
an account designated by the Depositary.
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
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forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing as to the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) 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 cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of such
series 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 (2), such manner of payment shall
be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest 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 shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for any
series of Securities, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of such
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of such series at its Maturity; or
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(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant of the
Company in this Indenture (other than a default in performance or breach of
a covenant which is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the benefit
of series of Securities other than such series), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% 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
(5) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than such series) or any
Subsidiary in an aggregate principal amount of at least $25,000,000 or
under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company (including this Indenture) or any Subsidiary in an
aggregate principal amount of at least $25,000,000 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, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 30 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 10% in principal
amount of the Outstanding Securities of such 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 stating that such notice is a "Notice of Default" hereunder;
provided, however, that, subject to the provisions of Sections 601 and 602,
the Trustee shall not be deemed to have knowledge of such default unless
either (A) a Responsible Officer of the Trustee shall have actual knowledge
of such default or (B) the Trustee shall have received written notice
thereof from the Company, from any
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Holder, from the holder of any such indebtedness or from the trustee under
any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company 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 in an involuntary
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 filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
such series.
To the extent applicable, upon receipt by the Trustee of any Notice of
Default executed by a Holder pursuant to this Section 501, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities of such series entitled to
join in such Notice of Default, which record date shall be the
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close of business on the day the Trustee receives such Notice of Default. The
Holders of Outstanding Securities of such series on such record date (or their
duly appointed agents), and only such Persons, shall be entitled to join in such
Notice of Default, whether or not such Holders remain Holders after such record
date; provided, that unless such Notice of Default shall have become effective
by virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th day after such record date, such Notice
of Default shall automatically and without any action by any Person be canceled
and of no further force or effect.
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.
------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of (and all accrued and unpaid interest on) all 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 any such declaration such
principal amount (or specified amount) and interest shall become immediately due
and payable. Upon payment of all such amounts (including interest accruing
through the date of payment), all obligations of the Company in respect of the
Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of such series,
(B) 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
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any interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of such series,
other than the nonpayment of the principal of and interest on the
Securities of such series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such acceleration, pursuant to this Section 502,
a record date shall automatically and without any other action by any Person be
set for the purpose of determining the Holders of Outstanding Securities of such
series entitled to join in such declaration or rescission and annulment, as the
case may be, which record date shall be the close of business on the day the
Trustee receives such declaration or rescission and annulment, as the case may
be. The Holders of Outstanding Securities of such series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
join in such declaration or rescission and annulment, as the case may be,
whether or not such Holders remain Holders after such record date; provided,
that unless such declaration or rescission and annulment, as the case may be,
shall have become effective by virtue of Holders of the requisite principal
amount of Outstanding Securities of such series on such record date (or their
duly appointed agents) having joined therein on or prior to the 90th day after
such record date, such declaration or rescission and annulment, as the case may
be, shall automatically and without any action by any Person be canceled and of
no further force or effect.
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee.
--------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
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(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to the Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, 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 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company or any
other obligor upon the Securities of any series or the property of the Company
or of such other obligor or their creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have the claims of
the Trustee and the Holders thereof allowed in any such proceeding. In
particular, the Trustee shall be authorized 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 such 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 such
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities
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of a series or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder thereof in any such proceeding.
SECTION 505. Trustee May Enforce Claims
Without Possession of Securities.
--------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name,
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities for which such money was
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
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture (including without limitation the provisions of
Section 512) 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 508. Unconditional Right of Holders
to Receive Principal, Premium and Interest.
------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest 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 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies
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of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in 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 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
any acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to any Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by such Holders, as the case
may be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series; provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by Responsible Officer or Officers of the Trustee, determine
that the action so directed would involve the Trustee in personal liability
for which it has not been adequately indemnified or would be unduly
prejudicial to Holders not joining in such direction.
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Upon receipt by the Trustee of any such direction, pursuant to this
Section 512, a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders of Outstanding
Securities of any series entitled to join in such direction, which record date
shall be the close of business on the day the Trustee receives such direction.
The Holders of Outstanding Securities of such series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to join
in such direction, whether or not such Holders remain Holders after such record
date; provided, that unless such direction shall have become effective by virtue
of Holders of the requisite principal amount of Outstanding Securities of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such direction shall
automatically and without any action by any Person be canceled and of no further
force or effect.
SECTION 513. Waiver of 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 default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company, the Trustee or the
Holders of 10%
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or more in principal amount of the Outstanding Securities of any series.
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants so that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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. 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 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, 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.
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SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity 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;
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any losses on investments;
(i) the Trustee shall not be liable for any error or judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(j) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series 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;
(k) the Trustee shall not be deemed to have notice or knowledge of any
matter unless a Responsible Officer has actual knowledge thereof or unless
written notice thereof is received by the Trustee at its Corporate Trust
Office and such notice refers to the Securities of any series, the Company
or this Indenture; and
(l) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Six shall also
be afforded to it as such Paying Agent, Authenticating Agent or Security
Registrar.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
-------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and 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 or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
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have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee or any Paying Agent (except the Company) in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee or any Paying Agent shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder as may be mutually agreed upon in
writing by the Company and the Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except to the extent any such
expense, disbursement or advance may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee and its directors, officers and employees
for, and to hold each of them harmless against, any loss, liability or
expense incurred without negligence or bad faith on its, his or her part,
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of
defending itself, himself or herself against any claim or liability in
connection with the exercise or performance of any of the Trustee'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, except funds
held in trust for the payment of principal of or any premium or interest on
particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501 or
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pursuant to Section 301, the expenses (including the reasonable fees and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar law.
The obligations of the Company set forth in this Section 607 and any
lien arising hereunder shall survive the resignation or removal of any Trustee,
the discharge of the Company's obligations pursuant to Article Four, the
termination of this Indenture and the repayment of the Securities whether at
Stated Maturity or otherwise.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such,
having a combined capital and surplus of at least $10,000,000 and, together with
the bank holding company of which it is a wholly owned subsidiary, a combined
capital and surplus of at least $100,000,000, and an office or agency in New
York, New York at which its corporate trust business is administered. If either
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal or state supervising or examining authority,
then for the purposes of this Section the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor or additional Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor or additional Trustee in
accordance with the applicable requirements of Section 611.
(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 acceptance by a successor or additional Trustee required by
Section 611 shall not have been delivered to the resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee
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may petition any court of competent jurisdiction for the appointment of a
successor or additional Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of such 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 such successor Trustee or Trustees
shall comply with the applicable requirements of Section 611. 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
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accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. All moneys due and owing to
a retiring Trustee shall be paid by the Company upon resignation or removal of
the retiring Trustee.
(b) In case of the appointment hereunder of a 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 such series to which the
appointment of such successor Trustee
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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 such series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of such series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of such series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
-------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder; provided, that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
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office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Authenticating Agents.
---------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon 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. Any such 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 thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of at least $10,000,000 and,
together with the bank holding company of which it is a wholly owned subsidiary,
a combined capital and surplus of at least $100,000,000, and subject to
supervision or examination by Federal, state or District of Columbia authority.
If either such Person publishes reports of its condition at least annually,
pursuant to law or the requirements of said supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of such
Person 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 to act as such 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 any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or
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consolidation to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of
any Authenticating Agent, shall continue to be Authenticating Agent hereunder;
provided, that such successor corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible to act as such in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Securities of the applicable series as their names and addresses appear in
the Security Register. Any successor Authenticating Agent upon acceptance of
its appointment under this Section shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if initially named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible to act as such in accordance with the
provisions of this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have represented to the Trustee that it is eligible for appointment as
Authenticating Agent under this Section and to have agreed with the Trustee
that: it will perform and carry out the duties of an Authenticating Agent as
herein set forth, including among other things the duties to authenticate
Securities when presented to it in connection with exchanges, registrations of
transfer thereof or pursuant to Section 306; it will keep and maintain, and
furnish to the Trustee from time to time as requested by the Trustee,
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; and it will notify the Trustee promptly if it
shall cease to be eligible to act as Authenticating Agent in accordance with the
provisions of this Section. Any Authenticating Agent by the acceptance of its
appointment shall be deemed to have agreed with the Trustee to indemnify the
Trustee against any loss, liability or expense incurred by the Trustee and to
defend any claim asserted against the Trustee by reason of any acts or failures
to act of such Authenticating Agent, but such Authenticating Agent shall have no
liability for any action taken by it in accordance with the specific written
direction of the Trustee.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certification of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Bank of Montreal Trust Company,
As Trustee
By..................................
As Authenticating Agent
By..................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders.
------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than June 15 and December 15 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the immediately preceding June 1 or December
1, 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, such list to be dated as of a date not more than 15 days prior
to the time such list is furnished;
notwithstanding the foregoing, so long as the Trustee is the Security Registrar,
no such list shall be required to be furnished.
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SECTION 702. Preservation of Information;
Communications to Holders.
-------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) 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 the
Securities of any series are listed, with the Commission and with the Company.
The Company will notify the Trustee when the Securities of any series are listed
on any stock exchange.
SECTION 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms.
---------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly 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 interest on all the Securities and
the performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which is an obligation of the successor Person or becomes
an obligation of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or such Subsidiary 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 happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a Lien which would not be permitted by this Indenture,
the Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each
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stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with the transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger by the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person (if still in existence) shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures
Without Consent of Holders.
--------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Event of Default; or
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(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided, that
any such addition, change or elimination shall neither apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor modify the
rights of the Holder of any such Security with respect to such provision;
or
(6) to secure the Securities pursuant to the requirements of Section
1004 or 1005 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) 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 action pursuant
to this clause (9) shall not adversely affect the interests of the Holders
of Outstanding Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such
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supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption or repurchase thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or 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
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1010, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary 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.
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SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Officer's Certificate and 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 adversely affects the Trustee's own rights, duties, immunities
or liabilities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities
to Supplemental Indentures.
--------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of such series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of such series may be presented
or surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and of any change in the location, of such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for any series of Securities for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Payments to be Held in Trust.
--------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or any premium or interest so becoming due
until such sums shall be paid to such Persons or
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otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of such series, deposit with any such
Paying Agent a sum sufficient to pay the principal or premium or interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent and hold all sums held by it for the payment of
principal of or interest on any Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided; and
(2) at any time during the continuance of any default by the Company
(or any other obligor upon the Securities of such series) in the making of
any payment in respect of the Securities of such series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent for payment in respect of the Securities of such
series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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 or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general
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creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper of general circulation in The City of New York, Borough of Manhattan,
and printed in the English language and customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Limitation on Liens.
-------------------
(a) Except as otherwise provided in clauses (1) through (9) below or
in subsection (b) of this Section, the Company shall not, and shall not permit
any Restricted Subsidiary to, issue, assume or guarantee any Debt secured by a
Lien upon any Principal Property of the Company or of any Restricted Subsidiary
or upon any shares of stock or Debt issued by any Restricted Subsidiary (whether
such Principal Property, shares of stock or Debt are now owned or hereafter
acquired) without in any such case effectively providing concurrently with the
issuance, assumption or guaranty of any such Debt that the Securities (together
with, if the Company shall so determine, any other indebtedness of or guaranty
by the Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinated to the Securities) shall be secured equally and
ratably with (or, at the option of the Company, prior to) such Debt, so long as
such Debt shall be so secured; provided, however, that nothing in this Section
1004 shall prevent, restrict or apply to (and there shall be excluded from
secured Debt in any computation under this Section 1004) Debt secured by:
(1) Liens on property of, or shares of stock or Debt issued by, any
Subsidiary existing at the time it becomes a Restricted Subsidiary;
provided, that such Lien shall not have been incurred in connection with
the transfer by the Company or a Restricted Subsidiary of a Principal
Property to such Subsidiary unless the Company, within 180 days of the
effective date of such transfer, applies or causes a Restricted Subsidiary
to apply an amount equal to the fair value, as determined by the Board of
Directors, of such Principal Property at the time of such transfer, to the
retirement of Securities or other Debt of the Company (other than Debt
subordinated to the Securities), or Debt of any Restricted Subsidiary
(other than Debt owed to the Company or any Restricted Subsidiary), having
a stated maturity (i) more than 12 months from the date of such application
or
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(ii) which is extendable at the option of the obligor thereon to a date
more than 12 months from the date of such application;
(2) Liens on any property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or securing the payment of all or any part of the purchase
price or construction cost thereof or securing any Debt incurred prior to,
at the time of, or within 180 days after, the acquisition of such property,
shares of stock or Debt or the completion of any such construction,
whichever is later, for the purpose of financing all or any part of the
purchase price or construction cost thereof;
(3) Liens on any property to secure all or any part of the cost of
development, construction, alteration, repair or improvement of all or any
part of such property, or to secure Debt incurred prior to, at the time of,
or within 180 days after, the completion of such development, construction,
alteration, repair or improvement, whichever is later, for the purpose of
financing all or any part of such cost;
(4) Liens which secure Debt owing by a Restricted Subsidiary to the
Company or to another Restricted Subsidiary or by the Company to a
Restricted Subsidiary so long as the Debt is held by the Company or a
Restricted Subsidiary;
(5) Liens securing indebtedness of a corporation or other Person which
becomes a successor of the Company in accordance with the provisions of
Article Eight other than Debt incurred by such corporation or other Person
in connection with a consolidation, merger or sale of assets in accordance
with such Article;
(6) Liens on property of the Company or a Restricted Subsidiary 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
country or any political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure
any indebtedness incurred or guaranteed for the purpose of financing all or
any part of the purchase price or the cost of construction, alteration,
repair or improvement of the property subject to such Liens (including but
not limited to Liens incurred in connection with pollution control,
industrial revenue or similar financing), or in favor of any trustee or
mortgagee for the benefit of
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holders of indebtedness of any such entity incurred for any such purpose;
(7) Liens securing Debt which is payable, both with respect to
principal and interest, solely out of the proceeds of oil, gas, coal or
other minerals to be produced from the property subject thereto and to be
sold or delivered by the Company or a Subsidiary, including any interest of
the character commonly referred to as a "production payment";
(8) Liens created or assumed by a Subsidiary on oil, gas, coal or
other mineral property, owned or leased by a Subsidiary, to secure Debt of
such Subsidiary for the purpose of developing such property, including any
interest of the character commonly referred to as a "production payment";
provided, however, that neither the Company nor any other Subsidiary shall
assume or guarantee such Debt or otherwise be liable in respect thereof;
and
(9) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in
the foregoing clauses (1) to (8), inclusive, or of any Debt secured
thereby; provided, that such extension, renewal or replacement Lien shall
be limited to all or any part of the same property that secured the Lien
extended, renewed or replaced (plus any improvements and construction on
such property) and shall secure no larger amount of Debt than that which
had been so secured at the time of such extension, renewal or replacement
and, in the case of clause (4), that the Debt being secured thereby is
being secured for the same type of Person as the Debt being replaced.
(b) Notwithstanding the foregoing provisions of this Section 1004, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by a Lien which would otherwise be subject to the
foregoing restrictions if at the time it does so (the "Incurrence Time") the
aggregate amount of such Debt plus all other Debt of the Company and its
Restricted Subsidiaries secured by Liens which would otherwise be subject to the
foregoing restrictions after giving effect to the retirement of any Debt which
is currently being retired (not including Debt permitted to be secured under
clauses (1) through (9) above), plus the aggregate Attributable Debt (determined
as of the Incurrence Time) of Sale and Leaseback Transactions (other than Sale
and Leaseback Transactions permitted by subsections (a) and (b) of Section 1005)
entered into after June __, 1996 and in existence at the Incurrence Time (less
the aggregate amount of proceeds of such Sale and Leaseback Transactions which
shall have been applied in accordance with
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subsection (c) of Section 1005), does not exceed 10% of Consolidated Net
Tangible Assets.
SECTION 1005. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
The Company shall not itself, and shall not permit any Restricted
Subsidiary to, enter into any arrangements after June __, 1996 with any bank,
insurance company or other lender or investor (other than the Company or another
Restricted Subsidiary) providing for the leasing as lessee by the Company or by
any such Restricted Subsidiary of any Principal Property (except a lease for a
temporary period not to exceed three years by the end of which it is intended
the use of such Principal Property by the lessee will be discontinued and a
lease which secures or relates to industrial revenue or pollution control bonds
or similar financing), which was or is owned by the Company or a Restricted
Subsidiary and which has been or is to be sold or transferred by the Company or
a Restricted Subsidiary, more than 180 days after the completion of construction
and commencement of full operation thereof by the Company or such Restricted
Subsidiary, to such lender or investor or to any Person to whom funds have been
or are to be advanced by such lender or investor on the security of such
Principal Property (herein called a "Sale and Leaseback Transaction") unless:
(a) the Company or such Restricted Subsidiary would (at the time of
entering into such arrangement) be entitled pursuant to clauses (1) through
(9) of subsection (a) of Section 1004, without equally and ratably securing
the Securities, to issue, assume or guarantee Debt secured by a Lien on
such Principal Property in the amount of the Attributable Debt arising from
such Sale and Leaseback Transaction; or
(b) the Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such Sale and Leaseback Transaction and all
other Sale and Leaseback Transactions entered into after June __, 1996
(other than such Sale and Leaseback Transactions as are permitted by
subsection (a) or (c) of this Section 1005), plus the aggregate principal
amount of Debt secured by Liens on Principal Properties then outstanding
(not including any such Debt secured by Liens described in clauses (1)
through (9) of subsection (a) of Section 1004) which do not equally and
ratably secure the Securities, would not exceed 10% of Consolidated Net
Tangible Assets; or
(c) the Company, within 180 days after the sale or transfer, applies
or causes a Restricted Subsidiary to apply an amount equal to the greater
of the net proceeds of such sale or transfer or the fair value, as
determined by the Board of Directors, of the Principal Property so sold and
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leased back at the time of entering into such Sale and Leaseback
Transaction to the retirement of Securities or other Debt of the Company
(other than Debt subordinated to the Securities), or Debt of any Restricted
Subsidiary (other than Debt owed to the Company or any Restricted
Subsidiary), having a stated maturity (i) more than 12 months from the date
of such application or (ii) which is extendable at the option of the
obligor thereon to a date more than 12 months from the date of such
application; provided, that the amount to be so applied shall be reduced by
(x) the principal amount of Securities delivered to the Trustee for
retirement and cancellation within 180 days after such sale or transfer,
and (y) the principal amount of any such Debt of the Company or a
Restricted Subsidiary other than Securities voluntarily retired by the
Company or a Restricted Subsidiary within 180 days after such sale or
transfer. Notwithstanding the foregoing, no retirement referred to in this
subdivision (c) may be effected by payment at Maturity.
Notwithstanding the foregoing, where the Company or any Restricted Subsidiary is
the lessee in any Sale and Leaseback Transaction, Attributable Debt shall not
include any Debt resulting from the guarantee by the Company or any other
Restricted Subsidiary of the lessee's obligation thereunder.
SECTION 1006. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1007. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its
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business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1008. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1009. Statement as to Compliance.
--------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer's
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they have knowledge.
SECTION 1010. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
provision or condition set forth in Sections 1004 and 1005, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such provision or
condition, but no such waiver shall extend to or affect such provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such provision or condition shall remain in full force and
effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for any series of Securities)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series 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 that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of such series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the
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case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall
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be an Interest Payment Date) accrued interest on, all the Securities which are
to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Security 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 and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
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The minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of the Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of a series as provided for by the terms
of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities.
-------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series 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 any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; provided, that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for a
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such series pursuant to the terms of such series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of such series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 days before each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article.
------------------------
If, pursuant to Section 301, provision is made for the defeasance of
Securities of a series and if the Securities of such series are denominated and
payable only in Dollars (except as provided pursuant to Section 301), then the
provisions of this Article shall be applicable except as otherwise specified
pursuant to Section 301 for Securities of such series. Defeasance provisions,
if any, for Securities denominated in a foreign currency or currency unit or for
bearer securities may be specified pursuant to Section 301.
SECTION 1302. Defeasance Upon Deposit of
Moneys or U.S. Government Obligations.
-------------------------------------
At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations in respect of the
Securities of any series on the 123rd day after the applicable conditions set
forth below have been satisfied or (b) the Company shall cease to be under any
obligation to comply with any provision or condition set forth in Sections 801,
802, 1004 and 1005 with respect to Securities of any series (and, if so
specified pursuant to Section 301, any other restrictive covenant added for the
benefit of such series pursuant to Section 301) and noncompliance with any such
covenant shall not result in a default in the performance, or breach, of any
covenant of the Company under this Indenture at any time after the applicable
conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee or its agent as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of such series: (i) money in an amount,
or (ii) U.S. Government Obligations (as defined below) that through the
payment of interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient, in the opinion (with respect to (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge each
installment of principal (including any mandatory sinking fund payments)
of, and premium, if any, and interest on, the Outstanding Securities of
such series on the dates such installments of interest or principal and
premium are due;
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(2) if the Securities of such series are then listed on the New York
Stock Exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Company's exercise of the option under
this Section 1302 would not cause the Securities to be delisted;
(3) no Event of Default or event (including such deposit) that with
notice or lapse of time or both would become an Event of Default with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel, which opinion and counsel are reasonably satisfactory to the
Trustee and its counsel, to the effect that Holders of Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of the option under this
Section 1302 and will be subject to Federal income tax on the same amounts
and in the same manner and at the same times as would have been the case if
such option had not been exercised, and, in the case of Securities of such
series being Discharged, either a private letter ruling to that effect
received from the United States Internal Revenue Service or a revenue
ruling pertaining to a comparable form of transaction to that effect
published by the United States Internal Revenue Service or evidence of a
change in applicable Federal income tax law occurring after the date of
this Indenture; and
(5) if the Company is to be Discharged with respect to the Securities
of such series, no Event of Default or event which with notice or lapse of
time or both would become an Event of Default under Section 501(6) or (7)
with respect to the Securities of such series shall have occurred and be
continuing at any time during the period ending on the 123rd day after the
date of such deposit.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive,
from the trust fund described in subparagraph (1) above, payment of the
principal of and premium, if any, and interest on such Securities when such
payments are due; (B) the Company's obligations with respect to the Securities
of such series under Sections 305, 306, 1002, 1003, 1303 and 1304; and (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder.
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"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, that in either case
under clause (i) or (ii) are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
SECTION 1303. Deposited Moneys and U.S. Government
Obligations to be Held in Trust.
-------------------------------
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 1302 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal and premium, if any, and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 1304. Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of and
premium, if any, and interest on the Securities of any series for which money or
U.S. Government Obligations have been deposited pursuant to Section 1302.
The provisions of the last paragraph of Section 1003 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Securities
for which money or U.S. Government Obligations have been deposited pursuant to
Section 1302.
-75-
<PAGE>
* * *
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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.
ATTEST: EQUITABLE RESOURCES, INC.
____________________________ By:_________________________
Name: Name:
Title: Title:
(Corporate Seal)
ATTEST: BANK OF MONTREAL
TRUST COMPANY
____________________________ By:_________________________
Name: Name:
Title: Title:
(Corporate Seal)
-76-
<PAGE>
ACKNOWLEDGMENTS
THE COMMONWEALTH OF PENNSYLVANIA)
)
COUNTY OF ALLEGHENY )
BEFORE ME, the undersigned authority, on this day personally appeared,
__________________________________, the ____________________ of EQUITABLE
RESOURCES, INC., known to me to be the person whose name is subscribed to the
above and foregoing instrument of writing, and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, in the
capacity therein stated, and as the act and deed of said corporation; and, being
by me duly sworn, did depose and say that he resides at
___________________________________, that he is the ______________________ of
said corporation, that 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 he signed his
name thereto by like authority.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ______ day of
___________________ 1996.
____________________________
Notary Public in and for
My commission expires on:
-77-
<PAGE>
THE STATE OF NEW YORK)
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day personally appeared
__________________________, the __________________ of BANK OF MONTREAL TRUST
COMPANY, known to me to be the person whose name is subscribed to the above and
foregoing instrument of writing, and acknowledged to me that he executed the
same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said corporation; and, being by me
duly sworn, did depose and say that he resides at
_______________________________, that he is a _____________________________ of
said corporation, that 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 he signed his
name thereto by like authority.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______ day of __________
1996.
____________________________
Notary Public in and for
My commission expires on:
-78-
<PAGE>
EXHIBIT 5.1
June 26, 1996
Equitable Resources, Inc.
420 Boulevard of the Allies
Pittsburgh, PA 15219
Ladies and Gentlemen:
I am Senior Vice President and Chief Legal Officer of Equitable
Resources, Inc., a Pennsylvania corporation (the "Company"), and have acted
as such in connection with the preparation of a Registration Statement on
Form S-3 (the "Registration Statement") relating to the proposed offering by
the Company of up to $168 million aggregate principal amount of debt
securities to be issued from time to time by the Company (the "Debt
Securities"). This opinion is furnished in connection with the filing by the
Company of the Registration Statement. I have examined such public and
corporate records and documents and such questions of law, and have made such
other investigation, as I deemed appropriate for purposes of this opinion.
Based upon the foregoing, I am pleased to advise you that in my
opinion the Debt Securities, when duly executed, authenticated and delivered
pursuant to an indenture in substantially the form filed as Exhibit 4.1 to
the Registration Statement (the "Indenture"), will be valid and binding
obligations of the Company and, to the extent provided in the Indenture and
the Debt Securities, enforceable in accordance with their terms, except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance or other laws affecting creditors' rights generally and by general
principles of equity.
In rendering the foregoing opinion, I have not examined the laws of
any jurisdiction other than the laws of the Commonwealth of Pennsylvania and
the federal laws of the United States of America and the foregoing opinion is
limited to such laws.
I hereby consent to the filing of this opinion as an exhibit to such
Registration Statement and to the reference to me under the caption "Validity
of Debt Securities" in the Prospectus contained therein.
Yours truly,
/s/ Augustine A. Mazzei, Jr.
-----------------------------
Augustine A. Mazzei, Jr.
Senior Vice President and
Chief Legal Officer
<PAGE>
Exhibit 12.1
EQUITABLE RESOURCES, INC. AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
FOR THE LAST FIVE FISCAL YEARS AND THE THREE MONTHS ENDED MARCH 31, 1996
------------------------------------------------------------------------
(Thousands)
<TABLE>
<CAPTION>
Three Months
Ended
1991 1992 1993 1994 1995 March 31, 1996
-------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Consolidated net income $ 64,168 $ 60,026 $ 73,455 $ 60,729 $ 1,548 $38,726
-------- -------- -------- -------- -------- -------
Add:
Federal and state income taxes 20,786 19,908 21,393 9,873 (28,216) 22,647
Investment tax credit,
net of amortization (850) (1,138) (1,373) (1,096) (1,091) (275)
Fixed charges 34,729 40,522 42,006 47,146 53,389 11,297
-------- -------- -------- -------- -------- -------
54,665 59,292 62,026 55,923 24,082 33,669
-------- -------- -------- -------- -------- -------
Earnings before fixed charges
and income taxes $118,833 $119,318 $135,481 $116,652 $25,630 $72,395
======== ======== ======== ======== ======= =======
Fixed charges:
Interest on long-term debt:
Debentures and medium-
term notes $ 22,351 $ 29,174 $ 31,272 $ 33,967 $34,889 $8,617
First mortgage bonds 1,759 1,389 330 -- -- --
Amortization of original issue
discount and debt expense,
less premium 1,208 1,336 1,559 1,582 1,646 410
-------- -------- -------- -------- -------- -------
Subtotal 25,318 31,899 33,161 35,649 36,535 9,027
Other interest 6,627 5,512 5,567 8,356 13,563 1,447
Allowance for borrowed funds
used during construction 1,263 1,267 1,841 2,072 2,530 651
One-third of rent expense which
is a representative interest
rate for existing leases 2,784 3,111 3,278 3,241 3,291 823
-------- -------- -------- -------- -------- -------
Total fixed charges $ 35,992 $ 41,789 $ 43,847 $ 49,218 $55,919 $11,948
======== ======== ======== ======== ======= =======
Ratio of earnings to fixed charges 3.30 2.86 3.09 2.37 .46 6.06
==== ==== ==== ==== === ====
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts"
in the Registration Statement (Form S-3) and related Prospectus of Equitable
Resources, Inc. (the "Company") for the registration of $168 million of debt
securities and to the incorporation by reference therein of our report dated
February 13, 1996, with respect to the consolidated financial statements and
schedule of the Company included in its Annual Report (Form 10-K) for the
year ended December 31, 1995, as amended by the Company's Amendment No. 1 to
its Annual Report on Form 10-K/A for the year ended December 31, 1995 and
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Pittsburgh, Pennsylvania
June 21, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF REED SMITH SHAW & McCLAY
We hereby consent to the reference to us under the caption "Validity
of Debt Securities" in the Prospectus contained in the Registration Statement
on Form S-3 and related Prospectus of Equitable Resources, Inc. with respect
to the registration of $168 million of nonconvertible debt securities.
REED SMITH SHAW & McCLAY
Pittsburgh, Pennsylvania
June 26, 1996
<PAGE>
EXHIBIT 25.1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a trustee Pursuant to
Section 305(b) ____
BANK OF MONTREAL TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-4941093
(Jurisdiction of incorporation or organization (I.R.S. employer
if not a U.S. national bank) identification no.)
77 Water Street
New York, New York 10005
(Address of principal executive offices) (Zip code)
Mark F. McLaughlin
Bank of Montreal Trust Company
77 Water Street, New York, NY 10005
(212) 701-7602
(Name, address and telephone number of agent for service)
____________________________________
EQUITABLE RESOURCES, INC.
(Exact name of obligor as specified in its charter)
Pennsylvania 25-0464690
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
420 Boulevard of the Allies
Pittsburgh, PA 15219
(Address of principal executive offices)
______________________________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
-2-
Item 1. General Information.
--------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of New York
33 Liberty Street, New York N.Y. 10045
State of New York Banking Department
2 Rector Street, New York, N.Y. 10006
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with the Obligor.
------------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 16. List of Exhibits.
-----------------
List below all exhibits filed as part of this statement of
eligibility.
1. Copy of Organization Certificate of Bank of Montreal Trust Company
to transact business and exercise corporate trust powers;
incorporated herein by reference as Exhibit "A" filed with Form T-1
Statement, Registration No. 33-46118.
2. Copy of the existing By-Laws of Bank of Montreal Trust Company;
incorporated herein by reference as Exhibit "B" filed with Form T-1
Statement, Registration No. 33-80928.
3. The consent of the Trustee required by Section 321(b) of the Act;
incorporated herein by reference as Exhibit "C" with Form T-1
Statement, Registration No. 33-46118.
4. A copy of the latest report of condition of Bank of Montreal Trust
Company published pursuant to law or the requirements of its
supervising or examining authority, attached hereto as Exhibit "D".
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Bank of Montreal Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York,
and State of New York, on the 14th day of June, 1996.
BANK OF MONTREAL TRUST COMPANY
By /s/ Amy S. Roberts
__________________________________
Amy S. Roberts
Assistant Vice President
<PAGE>
EXHIBIT "D"
STATEMENT OF CONDITION
BANK OF MONTREAL TRUST COMPANY
NEW YORK
------------------------------
<TABLE>
<S> <C>
ASSETS
Due From Banks $ 1,570,159
-----------
Investment Securities:
State & Municipal 17,025,354
Other 100
-----------
Total Securities 17,025,454
-----------
Loans and Advances
Federal Funds Sold 12,000,000
Overdrafts (336,057)
-----------
Total Loans and Advances 11,663,943
-----------
Investment in Harris Trust, NY 6,656,129
Premises and Equipment 509,422
Other Assets 2,494,863
-----------
TOTAL ASSETS $39,919,970
===========
LIABILITIES
Trust Deposits $ 9,859,384
Other Liabilities 9,239,409
-----------
TOTAL LIABILITIES 19,098,793
-----------
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 10,000 Shares of $100 Each 1,000,000
Surplus 4,222,188
Retained Earnings 15,510,844
Equity - Municipal Gain/Loss 88,145
-----------
TOTAL CAPITAL ACCOUNTS 20,821,177
-----------
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $39,919,970
===========
</TABLE>
I, Mark F. McLaughlin, Vice President, of the above-named bank do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Mark F. McLaughlin
December 31, 1995
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declared that it has been examined
by us, and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct.
Sanjiv Tandon
Kevin O. Healey
Steven R. Rothbloom
