<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 4, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
PANHANDLE EASTERN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
DELAWARE 74-2150460
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
5400 WESTHEIMER COURT
P.O. BOX 1642
HOUSTON, TEXAS 77251-1642
(713) 627-5400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
PAUL F. FERGUSON, JR.
VICE PRESIDENT, FINANCE AND ACCOUNTING, AND TREASURER
PANHANDLE EASTERN CORPORATION
5400 WESTHEIMER COURT
P.O. BOX 1642
HOUSTON, TEXAS, 77251-1642
(713) 627-5400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
Copies to:
<TABLE>
<S> <C>
MARINA M. HARRY, ESQ. CHARLES F. RECHLIN, ESQ.
PANHANDLE EASTERN CORPORATION SULLIVAN & CROMWELL
5400 WESTHEIMER COURT 444 SOUTH FLOWER STREET
HOUSTON, TEXAS 77056 LOS ANGELES, CALIFORNIA 90071
(713) 627-5400 (213) 955-8000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time 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
reinvestment plans, please check the following box. /X/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities................... $200,000,000* 100%** $200,000,000** $68,970
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</TABLE>
* If any Debt Securities are issued at an original issue discount, such greater
amount as will result in the initial offering prices aggregating a maximum of
$200,000,000, or, if any Debt Securities are issued with a principal amount
denominated in a foreign currency, such principal amount as shall result in
aggregate initial offering prices the equivalent of $200,000,000 at the time
of initial offering.
** Estimated solely for the purpose of determining the registration fee and
exclusive of accrued interest, if any.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
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> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION, DATED NOVEMBER 4, 1994
PROSPECTUS
PANHANDLE EASTERN CORPORATION
$200,000,000
DEBT SECURITIES
---------------------
Panhandle Eastern Corporation ("Panhandle" or the "Company") may offer from
time to time its unsecured debt securities consisting of notes, debentures or
other evidences of indebtedness (the "Securities") at an aggregate initial
offering price of not more than $200,000,000 or, if applicable, the equivalent
thereof in any other currency or currency unit. The Securities may be offered as
separate series in amounts, at prices and on terms to be determined in light of
market conditions at the time of sale and set forth in a Prospectus Supplement.
The terms of each series of Securities, including, where applicable, the
specific designation, aggregate principal amount, authorized denominations,
maturity, rate or rates (or method of determining the same) and time or times of
payment of any interest, any terms for optional or mandatory redemption, which
may include redemption at the option of holders upon the occurrence of certain
events, or any sinking fund provisions, any initial public offering price, the
proceeds to the Company and any other specific terms in connection with the
offering and sale of such series (the "Offered Securities") will be set forth in
a Prospectus Supplement. As used herein, Securities shall include securities
denominated in United States dollars or, at the option of the Company if so
specified in an applicable Prospectus Supplement, in any other currency or
currency unit, or in amounts determined by reference to an index.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution". If any agents of the Company or any underwriters are
involved in the sale of any Securities in respect of which this Prospectus is
being delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement. The net
proceeds to the Company from such sale also will be set forth in a 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.
---------------------
This Prospectus may not be used to consummate sales of the Securities
unless accompanied by a Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS NOVEMBER , 1994
<PAGE> 3
AVAILABLE INFORMATION
Panhandle is subject to the informational requirements of the Securities
Exchange Act of 1934 ("Exchange Act") and, in accordance therewith, files
reports, proxy statements and other information with the Securities and Exchange
Commission ("Commission"). Such reports, proxy statements and other information
can 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, Suite
1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661; and New
York Regional Office, 7 World Trade Center, New York, New York 10048. Copies of
such material may be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Certain securities of Panhandle are listed on the New York Stock Exchange
and the Pacific Stock Exchange. Reports, proxy statements and other information
concerning Panhandle can be inspected and copied at the office of the New York
Stock Exchange at 20 Broad Street, New York, New York and at the office of the
Pacific Stock Exchange at 301 Pine Street, San Francisco, California.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Panhandle incorporates herein by reference the following documents filed by
it with the Commission: (1) Annual Report on Form 10-K for the year ended
December 31, 1993 (File No. 1-8157); (2) Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1994 (File No. 1-8157); and
(3) Current Reports on Form 8-K, dated January 21, October 10 and November 14,
1994 (File No. 1-8157).
Each document filed by Panhandle pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of filing
of such document. Any statement contained herein or in a document all or a
portion of which is incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein or in the Prospectus Supplement 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 this Prospectus.
Panhandle hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any and
all of the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents unless such
exhibits are specifically incorporated by reference into such documents.
Requests for such copies should be directed to Mr. Robert W. Reed, Secretary, at
5400 Westheimer Court, P.O. Box 1642, Houston, Texas 77251-1642 (tel.
713-627-5400).
2
<PAGE> 4
THE COMPANY
Panhandle is a holding company whose subsidiaries are engaged primarily in
the transportation of natural gas in interstate commerce and related services.
The principal interstate pipeline operating subsidiaries of Panhandle are Texas
Eastern Transmission Corporation ("TETCO"), Algonquin Gas Transmission Company,
Panhandle Eastern Pipe Line Company ("PEPL") and Trunkline Gas Company.
Subsidiaries 1 Source Corporation ("1 Source") and Centana Energy Corporation
("Centana") pursue emerging opportunities in the natural gas market and
producing areas, respectively. 1 Source provides gas marketing, project
development, information services and financial services. In addition to
gathering and processing natural gas, Centana owns and operates intrastate
pipeline systems, markets hydrocarbon liquids and is a leading producer of
helium. Panhandle also owns subsidiaries engaged in the importation of liquefied
natural gas ("LNG") from Algeria, as well as in the transportation, storage and
regasification of LNG. In addition, Panhandle owns subsidiaries engaged in the
non-regulated marketing of natural gas nationwide and an investment in a
cogeneration venture. Through subsidiaries, Panhandle also owns interests in a
joint venture that owns and operates a chemical-grade methanol plant and an MBTE
plant in Saudi Arabia, in a master limited partnership engaged in the
transportation of natural gas in interstate commerce and related services, and
in a master limited partnership engaged in the transportation and storage of
petroleum products.
On October 9, 1994, Panhandle signed a merger agreement with Associated
Natural Gas Corporation ("ANGC"), a company engaged in the business of
purchasing, gathering, transporting and marketing natural gas, natural gas
liquids and crude oil. The agreement provides for the merger of a newly formed,
wholly-owned subsidiary of Panhandle into ANGC and contemplates the issuance by
Panhandle of its common stock in exchange for all outstanding shares of ANGC.
The merger is subject to certain conditions, including the vote of both
companies' stockholders. Following the merger, ANGC will become a wholly-owned
subsidiary of the Company. See the Company's Current Report on Form 8-K, dated
November 14, 1994, and the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1994, which are incorporated herein by reference.
Panhandle is a Delaware corporation organized in 1981 pursuant to the
corporate restructuring of PEPL, which was incorporated in 1929. Executive
offices of Panhandle are located at 5400 Westheimer Court, Houston, Texas
77056-5310, and the telephone number is (713) 627-5400.
USE OF PROCEEDS
Except as may otherwise be described in the Prospectus Supplement relating
to an offering of Securities, the net proceeds from the sale of the Securities
will be used for general corporate purposes. Any specific allocation of the net
proceeds of an offering of Securities to a specific purpose will be determined
at the time of such offering and will be discussed in the related Prospectus
Supplement.
RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEARS ENDED DECEMBER 31
SEPTEMBER 30, --------------------------------------------------------------
1994 1993 1992 1991 1990 1989
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<S> <C> <C> <C> <C> <C>
2.42 1.87 2.00 1.41 --(1) 1.34
</TABLE>
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(1) Ratio for 1990 was less than 1:1. The coverage deficiency was $323.7
million. Results for 1990 included provisions totaling approximately $400
million, including a write-down of $310 million on the LNG facilities.
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges. For this purpose, earnings consist of income from continuing
operations, before income taxes and fixed charges of the Company and its
subsidiaries plus the Company's share of the distributed income of less than 50%
owned persons. Fixed charges consist of the Company's and its subsidiaries'
interest expense (including interest costs
3
<PAGE> 5
capitalized), dividend requirements on preferred stock of subsidiaries and the
portion of rent expense representative of an interest factor. Such ratios do not
give effect to the proposed ANGC merger.
DESCRIPTION OF SECURITIES
The Securities will be issued under an indenture dated as of November 1,
1994 (the "Indenture") between the Company and The First National Bank of
Boston, as Trustee (the "Trustee"), which Indenture is filed as an exhibit to
the Registration Statement of which this Prospectus is a part. The statements
under this caption are brief summaries of certain provisions of the Indenture,
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all of the provisions of the Indenture, including the
definitions therein of certain terms. Wherever particular Sections of the
Indenture or terms not defined herein that are defined in the Indenture are
referred to herein or in a Prospectus Supplement, it is intended that such
Sections or defined terms shall be incorporated by reference herein or therein,
as the case may be.
The Securities may be issued from time to time in one or more series. The
particular terms of each series of Securities offered by any Prospectus
Supplement or Prospectus Supplements will be described in such Prospectus
Supplement or Prospectus Supplements relating to such series.
GENERAL
The Indenture does not limit the amount of Securities, debentures, notes or
other evidences of indebtedness that may be issued by the Company or any of its
subsidiaries. In addition, other than as set forth under "Limitation on Liens",
there are no provisions of the Indenture which afford holders of the Securities
protection in the event of either a change in control of the Company or a highly
leveraged transaction involving the Company.
Securities may be issued under the Indenture from time to time in separate
series up to the aggregate amount from time to time authorized by the Company
for such series. The Securities will be unsecured obligations of the Company and
will rank on a parity with all other unsecured and unsubordinated indebtedness
of the Company.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the Offered Securities: (1) the title of the
Offered Securities; (2) any limit on the aggregate principal amount of the
Offered Securities; (3) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Offered Securities will be
issued; (4) the date or dates on which the Offered Securities will mature; (5)
the rate or rates per annum (or the method by which such will be determined) at
which the Offered Securities will bear interest, if any, and the date from which
any such interest will accrue and whether, and under what circumstances,
additional amounts with respect to such Securities shall be payable; (6) the
Interest Payment Dates on which any such interest on the Offered Securities will
be payable and the Regular Record Date for any interest payable on any Offered
Securities on any Interest Payment Date; (7) any mandatory or optional sinking
fund or analogous provisions; (8) each office or agency where the principal of
and any premium and interest on the Offered Securities will be payable and each
office or agency where the Offered Securities may be presented for registration
of transfer or exchange, if other than as described below under "Form, Exchange,
Registration and Transfer" or "Payment and Paying Agents"; (9) any obligation of
the Company to redeem the Offered Securities and any right of the Company to
redeem the Offered Securities at its option and the period or periods, if any,
within which and the price or prices at which the Offered Securities may,
pursuant to any optional or mandatory redemption provisions, be redeemed, in
whole or in part, and the other detailed terms and provisions of any such
optional or mandatory redemption; (10) the denominations in which any Offered
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (11) if other than the currency of the United States
of America, the currency or currencies (including composite currencies) in which
payment of principal of and any premium and interest on the Offered Securities
is payable; (12) any index used to determine the amount of payments of principal
of and any premium and interest on the Offered Securities; (13) information with
respect to book-entry
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<PAGE> 6
procedures, if any; and (14) any other terms of the Offered Securities not
inconsistent with the provisions of the Indenture. (Section 301)
Securities may be issued as Original Issue Discount Securities. An Original
Issue Discount Security is a Security, including any Zero-Coupon Security, which
is issued at a price lower than the amount payable upon the Stated Maturity
thereof and which provides that upon redemption or acceleration of the maturity
thereof an amount less than the amount payable upon the Stated Maturity thereof
and determined in accordance with the terms of such Security shall become due
and payable. Special United States federal income tax considerations applicable
to Securities issued at an original issue discount, including Original Issue
Discount Securities, and special United States tax considerations and other
terms and restrictions applicable to any Securities which are denominated in
other than United States dollars, will be set forth in a Prospectus Supplement
relating thereto.
The Company is a holding company, conducting business only through
subsidiaries. Accordingly, the ability of the Company to meet its obligations
under the Indenture and the Securities will be dependent on the earnings and
cash flow of its subsidiaries and the ability of its subsidiaries to pay
dividends or to advance funds to the Company. In addition, the Company's rights
and the rights of its creditors, including the holders of Securities, to
participate in the assets of any subsidiary upon the latter's liquidation or
recapitalization will be subject to the prior claims of such subsidiary's
creditors and holders of any preferred stock of such subsidiary. Of the $2.051
billion of the Company's consolidated debt at September 30, 1994, approximately
$1.42 billion represented claims of the creditors of the Company's subsidiaries.
In addition, the bank credit facilities of TETCO and PEPL at September 30, 1994
were guaranteed by the Company, although no amounts were outstanding under such
facilities. Further, as of September 30, 1994, net advances and notes owed by
the Company to its subsidiaries aggregated approximately $1.69 billion.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
The Securities of each series will be issuable only in fully registered
form, without coupons, and, unless otherwise specified in the applicable
Prospectus Supplement, only in denominations of $1,000 and integral multiples
thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Book-Entry Securities, Securities of any series will
be exchangeable for other Securities of the same series of any authorized
denomination and of a like aggregate principal amount and tenor. (Section 305)
Subject to the terms of the Indenture and the limitations applicable to
Book-Entry Securities, Securities may be presented for exchange as provided
above and for registration of transfer (with the form of transfer endorsed
thereon duly executed) at the office of the Security Registrar or at the office
of any transfer agent designated by the Company for such purpose with respect to
any series of Securities and referred to in an applicable Prospectus Supplement,
without service charge and upon payment of any taxes and other governmental
charges as described in the Indenture. Such transfer or exchange will be
effected upon the Security Registrar or such transfer agent, as the case may be,
being satisfied with the documents of title and identity of the person making
the request. The Company has appointed the Trustee as Security Registrar.
(Section 305) If a Prospectus Supplement refers to any transfer agents (in
addition to the Security Registrar) initially designated by the Company with
respect to any series of Securities, the Company may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that the Company will be
required to maintain a transfer agent in each Place of Payment for such series.
The Company may at any time designate additional transfer agents with respect to
any series of Securities. (Section 1002)
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange Securities of any series
during a period beginning at the opening of business 15 days prior to the
selection of Securities of that series for redemption and ending on the close of
business on the day of mailing of the relevant notice of redemption; or (ii)
register the transfer of or exchange any Security, or portion thereof, called
for redemption, except the unredeemed portion of any Security being redeemed in
part. (Section 305)
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<PAGE> 7
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Securities will be made at the
office of such Paying Agent or Paying Agents as the Company may designate from
time to time, except that at the option of the Company payment of any interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register. (Sections 307, 1002) Unless
otherwise indicated in an applicable Prospectus Supplement, payment of any
installment of interest on Securities will be made to the Person in whose name
such Security is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Trustee at its Corporate Trust Office will be designated as a Paying Agent for
the Company for payments with respect to Securities of each series. Any
additional Paying Agents initially designated by the Company for the Securities
will be named in an applicable Prospectus Supplement. The Company may at any
time designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that the Company will be required to maintain a Paying Agent in each
Place of Payment for such series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Security which remain unclaimed
at the end of two years after such principal, premium or interest shall have
become due and payable will (subject to applicable escheat laws) be repaid to
the Company, and the Holder of such Security will thereafter look only to the
Company for payment thereof. (Section 1003)
BOOK-ENTRY SECURITIES
Some or all of the Securities of any series may be represented, in whole or
in part, by one or more Book-Entry Securities which will have an aggregate
principal amount equal to that of the Securities represented thereby. Each
Book-Entry Security will be registered in the name of a Depositary or a nominee
thereof identified in the applicable Prospectus Supplement, will be deposited
with such Depositary or nominee or a custodian therefor and will bear a legend
regarding the restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be provided for pursuant to
the Indenture.
Notwithstanding any provision of the Indenture or any Security described
herein, any Book-Entry Security shall be exchangeable for Securities registered
in the name of, and a transfer of a Book-Entry Security of any series may be
registered to, any Person other than the Depositary for such Book-Entry Security
or any nominee of such Depositary only if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such
Book-Entry Security or ceases to be qualified to act as such as required by the
Indenture, (ii) the Company executes and delivers to the Trustee a Company Order
that such Book-Entry Security shall be so exchangeable and the transfer thereof
so registrable, (iii) there shall have occurred and be continuing an Event of
Default with respect to the Securities of such series or (iv) there shall exist
such circumstances, if any, in addition to or in lieu of those described above
as may be described in the applicable Prospectus Supplement. All Securities
issued in exchange for a Book-Entry Security or any portion thereof will be
registered in such names as the Depositary may direct. (Sections 203 and 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Book-Entry Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Book-Entry Security and the
Securities represented thereby for all purposes under the Securities and the
Indenture. Except in the limited circumstances referred to above, owners of
beneficial interests in a Book-Entry Security will not be entitled to have such
Book-Entry Security or any Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificated Securities in exchange therefor and will not be considered to be
the owners or Holders of such Book-Entry Security or any Securities represented
thereby for any purpose under the Securities or the Indenture. All payments of
principal of and any premium and interest on a Book-Entry Security will be made
to the Depositary or its nominee, as the case may be, as the Holder thereof. The
laws of some jurisdictions require that certain purchasers of securities take
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<PAGE> 8
physical delivery of such securities in definitive form. These laws may impair
the ability to transfer beneficial interests in a Book-Entry Security.
Ownership of beneficial interests in a Book-Entry Security will be limited
to institutions that have accounts with the Depositary or its nominee
("participants") and to Persons that may hold beneficial interests through
participants. In connection with the issuance of any Book-Entry Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Securities represented by the Book-Entry
Security to the accounts of its participants. Ownership of beneficial interests
in a Book-Entry Security will be shown only on, and the transfer of those
ownership interests will be effected only through, records maintained by the
Depositary (with respect to participants' interests) or any such participant
(with respect to interests of Persons held by such participants on their
behalf). Payments, transfers, exchanges and others matters relating to
beneficial interests in a Book-Entry Security may be subject to various policies
and procedures adopted by the Depositary from time to time. 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 or any
participant's records relating to, or for payments made on account of,
beneficial interests in a Book-Entry Security, or for maintaining, supervising
or reviewing any records relating to such beneficial interests.
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a Book-Entry Security, in some cases, may trade in the Depositary's same-day
funds settlement system, in which secondary market trading activity in those
beneficial interests would be required by the Depositary to settle in
immediately available funds. There is no assurance as to the effect, if any,
that settlement in immediately available funds would have on trading activity in
such beneficial interests. Also, settlement for purchases of beneficial
interests in a Book-Entry Security upon the original issuance thereof may be
required to be made in immediately available funds.
CERTAIN DEFINITIONS
"Net Tangible Assets" means the aggregate amount of assets (less applicable
reserves and other properly deductible items) after deducting therefrom (i) all
current liabilities and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense (to the extent included in such aggregate
amount of assets) and other like intangibles. (Section 101)
"Principal Property" means any natural gas pipeline, natural gas gathering
system, natural gas storage facility or natural gas processing plant located in
the United States, except any such property that in the opinion of the Board of
Directors is not of material importance to the business conducted by the Company
and its consolidated Subsidiaries taken as a whole. (Section 101)
"Principal Subsidiary" means any Subsidiary which owns a Principal
Property. (Section 101)
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
(Section 101)
LIMITATION ON LIENS
The Indenture provides that the Company will not, and will not permit any
Subsidiary to, issue, assume or guarantee any debt for money borrowed ("Debt")
if such Debt is secured by a mortgage, pledge, security interest or lien (a
"mortgage" or "mortgages") upon any Principal Property of the Company or any
Principal Subsidiary or upon any shares of stock or indebtedness of any
Principal Subsidiary (whether such Principal Property, shares of stock or
indebtedness is now owned or hereafter acquired) without in any such case
effectively providing that the Securities shall be secured equally and ratably
with (or prior to) such Debt, except that the foregoing restrictions shall not
apply to: (a) mortgages on any property acquired, constructed or improved by the
Company or any Principal Subsidiary after the date of the Indenture which are
created within 180 days after such acquisition (or in the case of property
constructed or improved, after the completion and commencement of commercial
operation of such property, whichever is later) to secure or provide for the
payment of the purchase price or cost thereof, provided that in the case of such
construction or
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<PAGE> 9
improvement the mortgages shall not apply to any property theretofore owned by
the Company or any Subsidiary other than theretofore unimproved real property;
(b) existing mortgages on property acquired (including mortgages on any property
acquired from a Person which is consolidated with or merged with or into the
Company or a Subsidiary) or mortgages outstanding at the time any corporation
becomes a Subsidiary; (c) mortgages in favor of domestic or foreign governmental
bodies to secure advances or other payments pursuant to any contract or statute
or to secure indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to such mortgages, including
mortgages to secure Debt of the pollution control or industrial revenue bond
type; (d) mortgages in favor of the Company or any Principal Subsidiary; (e)
mortgages to secure loans to the Company or any Principal Subsidiary maturing
within 12 months from the creation thereof and made in the ordinary course of
business; (f) mortgages on property held or used by the Company or any Principal
Subsidiary in connection with the exploration for, development of or production
of, natural gas, oil or other minerals (including liquefied gas and synthetic
gas); or (g) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to in
the foregoing clauses (a), (b), (c), (d) or (f). (Section 1004)
Notwithstanding the foregoing, the Company and any Subsidiary may, without
securing the Securities, issue, assume or guarantee secured Debt (which would
otherwise be subject to the foregoing restrictions) in an aggregate amount
which, together with all other such Debt, does not exceed 10% of the Net
Tangible Assets, as shown on a consolidated balance sheet as of a date not more
than 90 days prior to the proposed transaction prepared by the Company in
accordance with generally accepted accounting principles. (Section 1004)
EVENTS OF DEFAULT
Any one of the following events constitutes an Event of Default under the
Indenture with respect to Securities of any series: (a) failure to pay any
interest on any Security of that series when due, continued for 30 days; (b)
failure to pay principal of or any premium on any Security of that series when
due; (c) failure to deposit any sinking fund payment, when due, in respect of
any Security of that series; (d) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture solely
for the benefit of series of Securities other than that series), continued for
90 days after written notice as provided in the Indenture; (e) certain events in
bankruptcy, insolvency or reorganization involving the Company; and (f) any
other Event of Default provided with respect to Securities of that series.
(Section 501)
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities of that
series by notice as provided in the Indenture may declare the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all the Securities of that series to be due and payable immediately.
At any time after a declaration of acceleration with respect to Securities of
any series has been made, but before a judgment or decree for payment of money
has been obtained by the Trustee, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series may, under certain
circumstances, rescind and annul such acceleration. (Section 502)
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Sections 601, 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series 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 that series; provided, however,
that the Trustee shall not be obligated to take any action unduly prejudicial to
Holders not joining in such direction or involving the Trustee in personal
liability. (Section 512)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of its obligations under the Indenture and as
to any default in such performance. (Section 1005)
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<PAGE> 10
DEFEASANCE
If so specified with respect to any particular series of Securities, the
Company may discharge its indebtedness and its obligations or certain of its
obligations under the Indenture with respect to such series by depositing funds
or obligations issued or guaranteed by the United States of America with the
Trustee.
Defeasance and Discharge
The Indenture provides that, if so specified with respect to the Securities
of any series, the Company will be discharged from any and all obligations in
respect of the Securities of such series (except for certain obligations
relating to temporary Securities and exchange of Securities, registration of
transfer or exchange of Securities of such series, replacement of stolen, lost
or mutilated Securities of such series, maintenance of paying agencies to hold
moneys for payment in trust and payment of additional amounts, if any, required
in consequence of United States withholding taxes imposed on payments to
non-United States persons) upon the deposit with the Trustee, in trust, of 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 to pay the principal of (and premium, if any), and each
installment of interest on, the Securities of such series on the Stated Maturity
of such payments in accordance with the terms of the Indenture and the
Securities of such series. (Sections 1302, 1304) Such a trust may only be
established if, among other things, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (ii)
since the date of the Indenture there has been a change in applicable federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge, 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 deposit, defeasance and discharge had not
occurred. (Section 1304) In the event of any such defeasance and discharge of
Securities of such series, Holders of Securities of such series would be
entitled to look only to such trust fund for payment of principal of and any
premium and any interest on their Securities until Maturity.
Defeasance of Certain Obligations
The Indenture provides that, if so specified with respect to the Securities
of any series, the Company may omit to comply with certain restrictive
covenants, including the covenant described under "Limitation on Liens" above,
and any such omission shall not be an Event of Default with respect to the
Securities of such series, upon the the deposit with the Trustee, in trust, of
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 to pay the principal of (and premium, if any), and
each installment of interest on, the Securities of such series on the Stated
Maturity of such payments in accordance with the terms of the Indenture and the
Securities of such series. The obligations of the Company under the Indenture
and the Securities of such series other than with respect to such covenants
shall remain in full force and effect. (Section 1303) Such a trust may be
established only if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the Securities
of such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain obligations 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 deposit and defeasance
had not occurred. (Section 1304)
Although the amount of money and U.S. Government Obligations on deposit
with the Trustee would be intended to be sufficient to pay amounts due on the
Securities of such series at the time of their Stated Maturity, in the event the
Company exercises its option to omit compliance with the covenants defeased with
respect to the Securities of any series as described above and the Securities of
such series are declared due and payable because of the occurrence of any Event
of Default, such amount may not be sufficient to pay amounts due on the
Securities of such series at the time of the acceleration resulting from such
Event of Default. The Company shall in any event remain liable for such payments
as provided in the Indenture.
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<PAGE> 11
Federal Income Tax Consequences
Under current United States federal income tax law, defeasance and
discharge would likely be treated as a taxable exchange of Securities to be
defeased for an interest in the defeasance trust. As a consequence, a holder
would recognize gain or loss equal to the difference between the holder's cost
or other tax basis for such Securities and the value of the holder's interest in
the defeasance trust, and thereafter would be required to include in income a
share of the income, gain or loss of the defeasance trust. Under current United
States federal income tax law, covenant defeasance would ordinarily not be
treated as a taxable exchange of such Securities.
MEETINGS, MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
modification or amendment; provided, however, that no such modification or
amendment may, without consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, (b) change the
Redemption Date with respect to any Security, (c) reduce the principal amount
of, or premium or interest on, any Security, (d) reduce the amount of principal
of an Original Issue Discount Security payable upon acceleration of the Maturity
thereof, (e) change the coin or currency in which any Security or any premium or
interest thereon is payable, (f) change the redemption right of any Holder, (g)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Security, (h) reduce the percentage in principal amount of
Outstanding Securities of any series, the consent of whose Holders is required
for modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults, or (i)
modify any of the above provisions. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of the Holders of all Securities of
that series, waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the Indenture. (Section 1006) The
Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of Securities of that
series, waive any past default under the Indenture with respect to any
Securities of that series, except a default (a) in the payment of principal of,
or premium, if any, or any interest on any Security of such series or (b) in
respect of a covenant or provision of the Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such
series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver thereunder as of any
date, (i) the principal amount of an Original Issue Discount Security that shall
be deemed to be Outstanding shall be the amount of the principal that would be
due and payable as of the date of such determination upon acceleration of the
Maturity thereof, and (ii) the principal amount of a Security denominated in a
foreign currency or currency units shall be the U.S. dollar equivalent,
determined on the date of original issuance of such Security, of the principal
amount of such Security or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (i) above. (Section 101)
Certain Securities, including those for whose payment or redemption money has
been deposited or set aside in trust for the Holders and those that have been
fully defeased pursuant to Section 1302 of the Indenture, will not be deemed to
be Outstanding. (Section 101)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Securities under the Indenture, may consolidate with or merge into, or convey,
transfer or lease its assets substantially as an entirety to, any Person which
is a corporation, partnership or trust organized and validly existing under the
laws of any domestic jurisdiction, provided that any successor Person assumes
the Company's obligations on
10
<PAGE> 12
the Securities and under the Indenture, that after giving effect to the
transaction no Event of Default, and no event which, after notice or lapse of
time, would become an Event of Default, shall have occurred and be continuing,
and that certain other conditions are met. (Section 801)
NOTICES
Notices to Holders of Securities will be given by mail to the addresses of
such Holders as they appear in the Security Register. (Section 106)
TITLE
The Company, the Trustee and any agent of the Company or the Trustee may
treat the registered owner of any Security as the owner thereof (whether or not
such Security shall be overdue and notwithstanding any notice to the contrary)
for the purpose of making payment and for all other purposes. (Section 308)
REPLACEMENT OF SECURITIES
Any mutilated Security will be replaced by the Company at the expense of
the Holder upon surrender of such Security to the Trustee. Securities that
become destroyed, stolen or lost will be replaced by the Company at the expense
of the Holder upon delivery to the Trustee of the Security or evidence of
destruction, loss or theft thereof satisfactory to the Company and the Trustee.
In the case of a destroyed, lost or stolen Security, an indemnity satisfactory
to the Trustee and the Company may be required at the expense of the Holder of
such Security before a replacement Security will be issued. (Section 306)
GOVERNING LAW
The Indenture and the Securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 113)
REGARDING THE TRUSTEE
The Company and certain affiliates from time to time borrow money from, and
maintain deposit accounts and conduct certain banking transactions with, The
First National Bank of Boston in the ordinary course of their business.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell Securities to or through underwriters or dealers, and
also may sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they may
act as agents in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933 ("Securities Act"). Any such person who may be deemed to
be an underwriter will be identified, and any such compensation received from
the Company will be described, in the Prospectus Supplement.
The Securities, when first issued, will have no established trading market.
Any underwriters or agents to or through whom Securities are sold by the Company
for public offering and sale may make a market in such
11
<PAGE> 13
Securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any Securities.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against or contribution toward
certain liabilities, including liabilities under the Securities Act.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases will be subject to the approval of the
Company. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the Securities shall not at the
time of delivery be prohibited under the laws of any jurisdiction to which such
purchaser is subject. The underwriters and such agents will not have any
responsibility in respect of the validity or performance of such contracts.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by
Sullivan & Cromwell, Los Angeles, California and for any underwriters, dealers
or agents by Vinson & Elkins L.L.P., Houston, Texas. Vinson & Elkins L.L.P. also
acts as counsel to the Company and certain of its affiliates in connection with
matters unrelated to the offering of the Securities.
EXPERTS
The consolidated financial statements and financial statement schedules,
included in Panhandle's Annual Report on Form 10-K for the year ended December
31, 1993, have been incorporated by reference herein and in the Registration
Statement in reliance upon the reports of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The report of KPMG
Peat Marwick LLP covering Panhandle's December 31, 1993 consolidated financial
statements refers to changes in the method of accounting for income taxes and
postretirement benefits other than pensions.
The supplemental consolidated financial statements of ANGC and its
subsidiaries included in Panhandle's Current Report on Form 8-K dated November
14, 1994 have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and in reliance
upon the report of Arthur Andersen LLP, independent public accountants,
appearing in Panhandle's Current Report on Form 8-K dated November 14, 1994, and
upon the authority of said firms as experts in accounting and auditing. The
supplemental consolidated financial statements of ANGC give retroactive effect
to the merger with Grand Valley Gas Company effective July 1, 1994.
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<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses payable by the Company in
connection with the issuance and distribution of the securities being
registered. All the amounts shown are estimates, except the registration fee.
<TABLE>
<S> <C>
Registration Fee.................................................. $ 68,970
Fees and expenses of accountants.................................. 35,000
Fees and expenses of counsel...................................... 100,000
Fees and expenses of Trustee and counsel.......................... 9,000
Printing and engraving............................................ 30,000
Blue Sky Fees and expenses (including counsel).................... 15,000
Rating Agency Fees................................................ 80,000
Miscellaneous..................................................... 22,030
--------
Total................................................... $360,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 9.1 of the Company's By-Laws provides as follows:
"(a) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether criminal, civil, administrative or
investigative, including actions, suits or proceedings by or in the right
of the Corporation, by reason of the fact that such person is or was a
director, advisory director, officer or employee of the Corporation, or is
or was serving at the request of the Corporation as a director, advisory
director, officer or employee of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against
judgments, fines (including excise taxes assessed with respect to employee
benefit plans), amounts paid in settlement, reasonable expenses (including
attorneys' fees) and other liabilities arising in connection with such
action, suit or proceeding, and reasonable expenses (including attorneys'
fees) incurred in enforcing the rights provided by this Section 9.1., to
the fullest extent to which indemnity may lawfully be provided pursuant to
a by-law under applicable law. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding, and
interest on any such expenses not paid by the Corporation when due shall be
paid by the Corporation at the rate announced from time to time by
Manufacturers Hanover Trust Company as its prime rate, to the fullest
extent to which advancement of such expenses and payment of such interest
may lawfully be provided pursuant to a by-law under applicable law;
provided, however, that, unless otherwise authorized by the Board of
Directors, no person shall be entitled to such advance payment of expenses
with respect to any action, suit or proceeding not by or in the right of
the Corporation, unless such person shall have given the Corporation
reasonable notice of the institution of such action, suit or proceeding and
the opportunity to control the defense thereof (with counsel reasonably
satisfactory to such person).
"(b) The rights provided by this Section 9.1 are for the benefit of
the persons referred to herein and their respective heirs, executors and
administrators and shall be legally enforceable against the Corporation by
such persons (who shall be presumed to have relied on such rights in
undertaking or continuing any of the positions referred to herein) or by
their respective heirs, executors and administrators. No amendment to or
restatement of this Section 9.1, or merger, consolidation or reorganization
of the Corporation, shall impair the rights of indemnification provided by
this Section 9.1 with respect to any action or failure to act, or alleged
action or failure to act, occurring or alleged to have occurred prior to
such amendment, restatement, merger or consolidation."
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<PAGE> 15
Section 145 of the Delaware General Corporation Law gives corporations the
power to indemnify officers and directors under certain circumstances.
The Company also maintains insurance for it and its subsidiaries' officers
and directors against certain liabilities, including liabilities under the
Securities Act, under insurance policies, the premiums for which are paid by the
Company. The effect of these is to indemnify any officer or director of the
Company or a subsidiary against expenses, judgments, fines, attorneys' fees and
other amounts paid in settlements incurred by an officer or director upon a
determination that such person acted in good faith.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
(4) -- Form of Indenture, dated as of November 1, 1994, between the
Company and The First National Bank of Boston.
(5) -- Opinion of Sullivan & Cromwell.
(12) -- Computation of ratios of earnings to fixed charges.
(23.1) -- Consent of KPMG Peat Marwick LLP.
(23.2) -- Consent of Sullivan & Cromwell (included in Exhibit (5)).
(24) -- Powers of Attorney.
(25) -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of The First National Bank of
Boston.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The Company 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;
(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;
(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 registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration
II-2
<PAGE> 16
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to any charter provision, by-law, contract, arrangement,
statute, or otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
against the Company by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 17
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 HOUSTON, AND STATE OF TEXAS, ON THE 4TH DAY OF
NOVEMBER, 1994.
PANHANDLE EASTERN CORPORATION
By ________________________________
Paul F. Ferguson, Jr.
Vice President, Finance and
Accounting, and Treasurer
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 NOVEMBER 4TH, 1994.
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE
------------------ -----
<S> <C> <C>
(i) Principal executive officer:*
DENNIS R. HENDRIX
----------------------------------------
Chairman and Chief
(Dennis R. Hendrix) Executive Officer
(ii) Principal financial officer:*
J. B. HIPPLE
----------------------------------------
Senior Vice President and
(J. B. Hipple) Chief Financial Officer
(iii) Principal accounting officer:*
SANDRA P. MEYER
----------------------------------------
(Sandra P. Meyer) Controller
(iv) Directors:*
PAUL M. ANDERSON
MILTON CARROLL
ROBERT CIZIK
CHARLES W. DUNCAN, JR.
HARRY E. EKBLOM
WILLIAM T. ESREY
ANN MAYNARD GRAY
DENNIS R. HENDRIX
HAROLD S. HOOK
LEO E. LINBECK, JR.
GEORGE L. MAZANEC
RALPH S. O'CONNOR
</TABLE>
- ---------------
* Signed on behalf of each of these persons:
<TABLE>
<S> <C>
By ----------------------------------------
(Robert W. Reed, Attorney-in-Fact)
</TABLE>
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<PAGE> 1
================================================================================
PANHANDLE EASTERN CORPORATION
TO
THE FIRST NATIONAL BANK OF BOSTON
Trustee
______________
Indenture
DATED AS OF NOVEMBER 1, 1994
___________
================================================================================
<PAGE> 2
i
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . 6
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . 7
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . 8
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . . . . . . . . . . . . . 8
SECTION 107. Language of Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . 9
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . 11
SECTION 203. Form of Legend for Book-Entry Securities . . . . . . . . . . . . . . . . . . . 11
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . 11
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . 14
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . 16
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . 17
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . 18
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . 20
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
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ii
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<S> <C>
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . 22
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . 23
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 505. Trustee May Enforce Claims without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. . . 26
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . 29
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . 30
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . 30
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . 31
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . 32
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . 33
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . 33
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . 36
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . 36
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
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iii
<TABLE>
<S> <C>
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . 37
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 901. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . 38
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . 39
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 40
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . 41
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . 41
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . 41
SECTION 1004. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 1005. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1006. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1102. Election to Redeem: Notice to Trustee . . . . . . . . . . . . . . . . . . . . 44
SECTION 1103. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . 45
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . 47
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . 47
</TABLE>
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ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . 48
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . 49
SECTION 1305. Deposited Money and U.S. Government Obligation
to be Held in Trust; Other Miscellaneous Provisions . . . . . . . . . . . . . . . 50
SECTION 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
</TABLE>
<PAGE> 6
1
INDENTURE, dated as of November 1, 1994, between PANHANDLE EASTERN
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
5400 Westheimer Court, Houston, Texas 77056, and The First National Bank of
Boston, as Trustee (herein called "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 a 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 in the United States of America, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America at the date of this
Indenture; and
<PAGE> 7
2
(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.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 203, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing 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.
<PAGE> 8
3
"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, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"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 is currently located at 150 Royall Street, Canton,
Massachusetts 02021.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the clearing agency registered under the Securities Exchange Act of
1934, as amended, specified for that purpose as contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Holder" means the Person in whose name the 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, and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Net Tangible Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense (to the extent
included in such aggregate amount of assets) and other like intangibles.
<PAGE> 9
4
"Officers' Certificate" means a certificate complying with the
provisions of Section 102 signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company 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;
(iii) Securities as to which defeasance has been effected
pursuant to Section 1302; and
(iv) 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;
provided, however, that in determining whether the Holders of the requisite
principal amount of the 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 a foreign currency or currencies, including composite
currencies, shall be the Dollar equivalent, determined on the date of original
issuance of such Security in the manner provided as contemplated by Section
301, of the principal amount (or, in the case of an Original Issue Discount
Security, the 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 the Trustee knows to be
<PAGE> 10
5
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 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 as specified in accordance with Section 301
where the principal of and any premium and interest on the Securities of that
series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any natural gas pipeline, natural gas
gathering system, natural gas storage facility or natural gas processing plant
located in the United States, except any such property that in the opinion of
the Board of Directors is not of material importance to the business conducted
by the Company and its consolidated Subsidiaries taken as a whole.
"Principal Subsidiary" means any Subsidiary which owns a Principal
Property.
"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, shall
mean any officer in the corporate trust department (or any successor group) of
the Trustee, including any vice president, assistant vice president, assistant
secretary, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office because of his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
<PAGE> 11
6
"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 interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture 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 any 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 Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"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 shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
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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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided 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 an agent
duly appointed in writing. 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.
<PAGE> 13
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(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 Outstanding Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
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 such series made by any Person in respect of any such
action, the record date for any such action shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation. With regard to any
record date for action to be taken by the Holders of one or more series of
Securities, only the Holders of Securities of such series on such date shall be
entitled to give or take the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(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 request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture,
to the attention of its Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be
sufficiently given if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In case by reason
of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice to Holders by mail, then
<PAGE> 14
9
such notification as shall be made with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
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 of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language.
SECTION 108. 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 as so modified or to be excluded, as the
case may be.
SECTION 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or 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 112. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
<PAGE> 15
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SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depository
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
A copy of the Board Resolution establishing the forms of Securities of any
series shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
<PAGE> 16
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SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By ________________________________
Authorized Officer."
SECTION 203. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in such limited circumstances."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such
series shall rank equally and pari passu with each other 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:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
<PAGE> 17
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(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, or the method by which such rate shall be
determined, the date or dates from which any 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, any
Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(7) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and 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 so redeemed;
(8) the obligation, if any, of the Company to redeem,
purchase, or repay Securities of the series pursuant to any mandatory
redemption, 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, purchased or repaid, in whole or in
part, pursuant to such obligation;
(9) the denominations in which any Securities of the series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(10) the currency or currencies, including composite
currencies, 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 and 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;
<PAGE> 18
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(12) if other than the principal amount thereof, the portion
of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(13) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment
of the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(14) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depository with
respect to such Book-Entry Security or Securities; and (b) the
circumstances under which any such Book-Entry Security may be
exchanged for Securities registered in the name of, and any transfer
of such Book-Entry Security may be registered to, a Person other than
such Depository or its nominee, if other than as set forth in Section
305;
(15) if either or both of the provisions of Section 1302 or
1303 are applicable to the Securities of such series and any
additional means of discharge pursuant to Section 1302 or 1303 and any
additional conditions to the provisions of Section 1302 or 1303;
(16) any other Events of Default or covenants with respect to
the Securities of such series; and
(17) 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 such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
<PAGE> 19
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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, its President or one of
its Vice Presidents, under its corporate seal 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 authenticate and deliver such
Securities.
In authenticating 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) that the forms of such Securities established by or
pursuant to Board Resolution as contemplated by Section 201 have 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 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 and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
Such Opinion of Counsel shall also cover such other matters as the Trustee may
reasonably request.
The Trustee shall not be required to authenticate such Securities the
forms or terms of which have been established by or pursuant to a Board
Resolution 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 two preceding
paragraphs, 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 paragraphs at or prior to
the time
<PAGE> 20
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of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon issuance of the first Security
of such series to be issued.
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company (which, subject to Section 601, the Trustee shall
be fully protected in relying on) that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. 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 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten 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.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for such
series for the purpose of exchanges of Securities of 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 a like aggregate principal amount
of definitive Securities of the same series, of any authorized denominations
and of like tenor. 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 and tenor.
<PAGE> 21
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being 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 each series of Securities and the registration of transfers of
such Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company 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 and tenor.
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 and tenor, upon surrender of the Securities
to be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Trustee or any transfer
agent) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar or any transfer
agent duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 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 any selection of Securities of that series
to be redeemed and ending at the close of business on the day of the mailing of
the relevant notice of redemption 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.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 301, any Book-Entry Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities
registered in the name of, and a transfer of a Book-Entry Security of any
series may be registered to, any Person other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that
it is unwilling or unable to continue as
<PAGE> 22
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Depository for such Book-Entry Security or if at any time such Depository
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, (ii) the Company executes and delivers to the Trustee a
Company Order that such Book- Entry Security shall be so exchangeable and the
transfer thereof so registrable or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities of such series.
Upon the occurrence in respect of any Book-Entry Security of any series of any
one or more of the conditions specified in clause (i), (ii) or (iii) of the
preceding sentence or such other conditions as may be specified, such
Book-Entry Security may be exchanged for Securities registered in the names of,
and the transfer of such Book-Entry Security may be registered to, such Persons
(including Persons other than the Depository with respect to such series and
its nominees) as such Depository shall direct. Notwithstanding any other
provision of this Indenture, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Book-Entry
Security shall also be a Book-Entry Security and shall bear the legend
specified in Section 203 except for any Security authenticated and delivered in
exchange for, or upon registration of transfer of, a Book-Entry Security
pursuant to the preceding sentence.
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 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 payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 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.
<PAGE> 23
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless 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.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the 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 the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be then listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
<PAGE> 24
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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 premium, if
any) and (subject to Sections 305 and 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.
Notwithstanding the foregoing, with respect to any Book-Entry
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Book- Entry Security.
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 cancelled by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, 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 cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of in accordance
with its customary practice.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
<PAGE> 25
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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 premium, if any) and
any 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
(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.
<PAGE> 26
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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 clause (1)(B) 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.
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, rule
or regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series of Securities or it is specifically deleted
or modified in or pursuant to the terms of such series or in the form of
Security of such series:
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
<PAGE> 27
22
(5) 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
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or 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 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
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
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding 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 that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
<PAGE> 28
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(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and 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 that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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
(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 the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant
<PAGE> 29
24
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), its property or its 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 claims of the Holders and the Trustee 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 Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due 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 or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of Holders, vote for the election of a
trustee of bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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 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 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.
<PAGE> 30
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In any case in which Securities are Outstanding that are denominated
in more than one currency and the Trustee is directed to make ratable payments
under this Section to Holders of such Securities, unless otherwise provided
with respect to any series of Securities, the Trustee shall calculate the
amount of such payments as follows: (i) as of the day the Trustee collects an
amount under this Article, the Trustee shall, as to each Holder of a Security
to whom an amount is due and payable under this Section that is denominated in
a foreign currency, determine that amount in Dollars that would be obtained for
the amount owing such Holder, using the rate of exchange at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York Dollars with such amount owing; (ii) calculate the sum of all Dollar
amounts determined under (i) and add thereto any amounts due and payable in
Dollars; and (iii) using the individual amounts determined in (i) or any
individual amounts due and payable in Dollars, as the case may be, as a
numerator, and the sum calculated in (ii) as a denominator, calculate as to
each Holder of a Security to whom an amount is owed under this Section the
fraction of the amount collected under this Article payable to such Holder.
Any expenses incurred by the Trustee in actually converting amounts owing
Holders of Securities denominated in a currency other than that in which any
amount is collected under this Article shall be likewise (in accordance with
this paragraph) borne ratably by all Holders of Securities to whom amounts are
payable under this Section.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against the
Company is calculated as above and the time the Trustee converts the Judgment
Currency into the Required Currency to make payments under this Section to
Holders of Securities, but payment of such judgment shall discharge all amounts
owed by the Company on the claim or claims underlying such judgment.
SECTION 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 that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
<PAGE> 31
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections
305 and 307) any 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 of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, 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.
<PAGE> 32
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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
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders of Securities may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders of Securities.
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) the Trustee shall not be obligated to take any action
unduly prejudicial to Holders not joining in such direction or
involving the Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to the Securities of
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
<PAGE> 33
28
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.
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 to take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) 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;
<PAGE> 34
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(2) 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;
(3) 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;
(4) 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;
(5) 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;
(6) 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; and
(7) 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.
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 have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee and each predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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 benefit of the Holders of particular Securities.
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
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee
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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. No obligor upon any Security issued under this
Indenture or a person directly or indirectly controlling, controlled by or
under common control with such obligor shall serve as Trustee under this
Indenture.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 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 Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Security
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 a 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 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 of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation,
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removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, 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 of Securities of such series and
accepted appointment in the manner required by Section 611, any Holder of a
Security 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. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint a
successor Trustee.
(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
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 further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee, with like effect as
if originally named Trustee hereunder; 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. Any Trustee ceasing to act shall,
nevertheless, retain a prior lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing
<PAGE> 38
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herein or in such supplemental indenture shall constitute such Trustees as
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 rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any 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 such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so 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. Appointment of Authenticating Agent.
The Trustee may, by an instrument in writing, appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which may be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or 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
<PAGE> 39
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the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such 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, and if it shall cease to be eligible
shall, resign at any time by giving written notice thereof to the Trustee and
to the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities, if any, of the series with
respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The 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 payment, subject to the
provisions of Section 607.
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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 certificate of authentication, an alternative
certificate of authentication in the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON,
As Trustee
By: _______________________________
As Authenticating Agent
By: ________________________________
Authorized Officer"
If all the Securities of a series may not be originally issued at one
time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent (which, if so requested by the Company, shall
be such Affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after a Regular Record Date,
a list, in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, or any of its Paying
Agents other than the Trustee, as to the names and addresses of the Holders of
Securities as of the immediately preceding Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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 the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges 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 and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
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.
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(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 any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 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.
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, unless;
(1) 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 any
premium 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 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 mortgage, pledge, lien, security
interest or other encumbrance 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
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(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of 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 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 of Securities, 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 pursuant to Article Eight; 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 Events of Default; or
(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
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(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 (A) shall
neither (i) 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 (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective
only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of
Section 1004 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 or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provisions with respect
to matters or questions arising under this Indenture; provided, that
such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority 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
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 thereof, or change the Redemption
Date 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 the coin or currency in which any Security or
any premium or interest thereon is payable, or change any right of
redemption, purchase or repayment by the Company at the option of the
Holder, 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
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(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, Section 513
or Section 1006 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 of a Security with respect
to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 1006 or the deletion of this provision, 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 of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 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 Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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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.
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 that 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 that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee and
prompt notices to the Holders as provided in Section 106 of the location, and
any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where 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 accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
other change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company 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 and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such
<PAGE> 47
42
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure to so act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
and any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal and any premium or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure to so 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 (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that 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 and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request (unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law), or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Security shall (unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law)
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in each Place of Payment, 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) The Company will not, nor will it permit any Subsidiary to,
issue, assume or guarantee any indebtedness for money borrowed (hereinafter in
this Article Ten referred to as "Debt"), if such Debt is secured by a mortgage,
pledge, security interest or lien (any mortgage, pledge, security interest or
lien being hereinafter in this Article Ten referred to as a "mortgage" or
"mortgages") upon
<PAGE> 48
43
any Principal Property of the Company or any Principal Subsidiary or upon any
shares of stock or indebtedness of any Principal Subsidiary (whether such
Principal Property, shares of stock or indebtedness is now owned or hereafter
acquired), without in any such case effectively providing, concurrently with
the issuance, assumption or guarantee of such Debt, that the Securities
(together with, if the Company shall so determine, any other indebtedness of
or guaranteed by the Company or such Principal Subsidiary ranking equally with
the Securities then outstanding and existing or thereafter created) shall be
secured equally and ratably with (or prior to) such Debt; provided, however,
that the foregoing restriction shall not apply to:
(1) mortgages on property acquired, constructed or improved by
the Company or any Principal Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with, or
within 180 days after, such acquisition (or in the case of property
constructed or improved, after the completion and commencement of
commercial operation of such property, whichever is later) to secure
or provide for the payment of any part of the purchase price of such
property or the cost of such construction or improvement, it being
understood that if a commitment for such a financing is obtained prior
to or within such 180-day period, the applicable mortgage shall be
deemed to be included in this clause (1) whether or not such mortgage
is created within such 180-day period; provided that in the case of
any such construction or improvement the mortgage shall not apply to
any property theretofore owned by the Company or any Subsidiary, other
than any theretofore unimproved real property on which the property so
constructed, or the improvement, is located;
(2) mortgages on any property existing at the time of
acquisition thereof (including mortgages on any property acquired from
a Person which is consolidated with or merged with or into the Company
or a Subsidiary) and mortgages outstanding at the time any corporation
becomes a Subsidiary;
(3) mortgages in favor of the Company or any Principal
Subsidiary;
(4) mortgages in favor of the United States of America, any
State, any foreign country or any department, agency or
instrumentality or political subdivision of any such jurisdiction, to
secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the cost
of constructing or improving the property subject to such mortgages,
including, without limitation, mortgages to secure Debt of the
pollution control or industrial revenue bond type;
(5) mortgages on property held or used by the Company or any
Principal Subsidiary in connection with the exploration for,
development of or production of, natural gas, oil or other minerals
(including liquified gas and synthetic gas); and
(6) mortgages to secure loans to the Company or any Principal
Subsidiary maturing within 12 months from the creation thereof and
made in the ordinary course of business;
(7) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
mortgage referred to in the foregoing clauses (1) to (5), inclusive;
provided, however, that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at the time
of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the
property which secured the mortgage so extended, renewed or replaced
(plus improvements on such property).
<PAGE> 49
44
(b) Notwithstanding the provisions of subsection (a) of this Section
1004, the Company or any Subsidiary may issue, assume or guarantee secured
Debt, which would otherwise be subject to the foregoing restrictions, in an
aggregate amount which, together with all other such Debt, does not exceed 10%
of Net Tangible Assets, as shown on a consolidated balance sheet, as of a date
not more than 90 days prior to the proposed transaction, prepared by the
Company in accordance with generally accepted accounting principles.
SECTION 1005. Statement by Officers as to Default.
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, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his knowledge of the Company's compliance
with all conditions and covenants under this Indenture. For purposes of this
Section 1005, such compliance shall be determined without regard to any period
of grace or requirement of notice under this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1004 with respect to the
Securities of any series if before the time for such compliance the Holders of
a majority 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 term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
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 Securities of any
series) 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 the 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 of
such series to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall
<PAGE> 50
45
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction or condition.
SECTION 1103. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series of a specified tenor are to be
redeemed) the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Company or the Trustee, from
the Outstanding Securities of such series not previously called for redemption,
by such method as the Company or 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 that 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 Company or the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Company or the Trustee, as the case may be, shall promptly notify
the other in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For 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 in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
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, and that on and after the
Redemption Date, upon surrender of the Securities, new Securities of
such series in principal amount equal to the unredeemed part thereof
will be issued,
(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,
<PAGE> 51
46
(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.
On or 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 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 on
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
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 thereof (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.
<PAGE> 52
47
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.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
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 any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so credited. Not less than 45 days before each such sinking fund payment
date the Company or 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.
<PAGE> 53
48
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 1302 or Section 1303 applied to the Outstanding
Securities of any series upon compliance with the conditions set forth below in
this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of any series
on the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities of such series and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of the Securities of such series to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on the Securities of such series when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article Thirteen. Subject
to compliance with this Article Thirteen, the Company may exercise its option
under this Section 1302 notwithstanding the prior exercise of its option under
Section 1303.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations with respect to the Securities of such series under Sections 801
and 1004, and (ii) the occurrence of an event specified in Sections 501(3) or
(4) shall not be deemed to be an Event of Default on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
but the remainder of this Indenture and such Securities shall be unaffected
thereby. For this purpose, such covenant defeasance means that the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or clause whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or clause or by reason of any reference in any such Section or clause
to any other provision herein or in any such Section or clause to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
<PAGE> 54
49
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest 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 (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (and premium, if any) and each installment of interest on
the Securities on the Stated Maturity of such principal (and premium,
if any) or installment of interest in accordance with the terms of
this Indenture and of the Securities of such series. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which
is unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment
of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such
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 principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize gain or loss
for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(3) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax
<PAGE> 55
50
purposes as a result of such deposit and covenant defeasance and will
be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which 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 or, insofar as subsections 501(5) and (6) are
concerned, at any time during the period ending on the 121st day after
the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act with respect to any securities of the Company.
(6) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not
result in the trust arising from such deposit constituting an
investment company as defined in the Investment Company Act of 1940,
as amended, or such trust shall be qualified under such Act or exempt
from regulation thereunder.
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Securities of such series shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities of such
series 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 the Securities of such series, of all
sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
<PAGE> 56
51
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
1302 or 1303; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of the Securities of such series to receive such payment from
the money held by the Trustee or the Paying Agent.
____________________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE> 57
52
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.
PANHANDLE EASTERN CORPORATION
By _____________________________________
Vice President, Finance and Accounting,
and Treasurer
Attest:
_____________________________
Secretary
THE FIRST NATIONAL BANK OF BOSTON
By __________________________________
Attest:
_____________________________
Assistant Cashier
<PAGE> 1
EXHIBIT 5
SULLIVAN & CROMWELL
TELEPHONE: (213) 955-8000
FACSIMILE: (213) 683-0457
444 South Flower Street
Los Angeles, California 90071-2901
__________
125 BROAD STREET, NEW YORK 10004-2498
250 PARK AVENUE, NEW YORK 10177-0021
1701 PENNSYLVANIA AVE., N.W., WASHINGTON, D.C. 20006-5805
8, PLACE VENDOME, 75001 PARIS
ST. OLAVE'S HOUSE, 9a IRONMONGER LANE, LONDON EC2V 8EY
101 COLLINS STREET, MELBOURNE 3000
2-1, MARUNOUCHI 1-CHOME, CHIYODA-KU, TOKYO 100
NINE QUEEN'S ROAD, CENTRAL, HONG KONG
November 2, 1994
Panhandle Eastern Corporation,
5400 Westheimer Court,
Houston, Texas 77056.
Dear Sirs:
In connection with the registration under the Securities Act of 1933
(the "Act") of $200,000,000 of debt securities (the "Securities") of Panhandle
Eastern Corporation, a Delaware corporation (the "Company"), we, as your
special counsel, have examined such corporate records, certificates and other
documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion, when the Registration Statement has become effective under the Act,
the Indenture relating to the Securities has been duly authorized, executed and
delivered, the terms of the Securities and of their issuance and sale have been
duly established in conformity with the
<PAGE> 2
Panhandle Eastern Corporation -2-
Indenture so as not to violate any applicable law or result in a default under
or breach of any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, and the Securities have been duly
executed and authenticated in accordance with the Indenture and issued and sold
as contemplated in the Registration Statement, the Securities will constitute
valid and legally binding obligations of the Company, 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.
The foregoing opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the General Corporation Law of
the State of Delaware, and we are expressing no opinion as to the effect of the
laws of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to
be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity
of Securities"
<PAGE> 3
Panhandle Eastern Corporation -3-
in the Prospectus. In giving such consent, we do not thereby admit that we are
in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ SULLIVAN & CROMWELL
<PAGE> 1
EXHIBIT 12
PANHANDLE EASTERN CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Millions, except ratios)
<TABLE>
<CAPTION>
Nine
Months
ended Years Ended December 31
September 30, ---------------------------------------------------
1994 1993 1992 1991 1990 1989
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Income (Loss) From Continuing
Operations
$157.2 $148.1 $187.1 $ 85.8 $(249.7) $ 69.5
------ ------ ------ ------ ------- ------
Deduct:
Undistributed Net Income (Loss)
of Less Than 50%-Owned
Companies 16.0 5.6 6.1 3.0 10.7 (2.8)
------ ------ ------ ------ ------- ------
Add:
Income Tax (Benefit) 108.1 102.6 125.4 62.3 (62.8) 58.7
------ ------ ------ ------ ------- ------
Add Fixed Charges:
Interest Expense 169.4 272.1 295.8 336.7 359.2 372.3
Interest Portion of Rentals 6.2 8.2 9.2 9.4 10.0 8.0
Dividends on Preferred Stock
of Subsidiaries -- 0.7 1.3 2.2 2.3 3.5
------ ------ ------ ------ ------- ------
Total Fixed Charges 175.6 281.0 306.3 348.3 371.5 383.8
------ ------ ------ ------ ------- ------
Adjustment to Earnings:
Tax Effect of Preferred Stock
Dividends Included in Fixed
Charges -- (0.3) (0.5) (0.9) (0.5) (1.6)
------ ------ ------ ------ ------- ------
Earnings Before Fixed Charges
and Income Tax $424.9 $525.8 $612.2 $492.5 $ 47.8 $513.2
====== ====== ====== ====== ======= ======
Ratio of Earnings
to Fixed Charges 2.42 1.87 2.00 1.41 -- * 1.34
====== ====== ====== ====== ======= ======
</TABLE>
* Ratio for 1990 was less that 1:1. The coverage deficiency was $323.7 million.
Results for 1990 included provisions totaling approximately $400 million,
including a write-down of $310 million on the liquefied natural gas
facilities.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Panhandle Eastern Corporation:
We consent to the use in this registration statement on Form S-3 of
our reports on the consolidated financial statements and financial statement
schedules of Panhandle Eastern Corporation and subsidiaries incorporated by
reference herein and to the reference to our firm under the heading "Experts" in
the prospectus. Such report covering the consolidated financial statements
refers to changes in the method of accounting for income taxes and
postretirement benefits other than pensions.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Houston, Texas
November __, 1994
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned directors and/or
officers of PANHANDLE EASTERN CORPORATION (the "CORPORATION"), a Delaware
corporation, do hereby constitute and appoint JAMES B. HIPPLE, ROBERT W. REED,
and PAUL F. FERGUSON, JR., and each of them, their true and lawful attorneys
and agents to do any and all acts and things and execute any and all
instruments which, with the advice of counsel, said attorneys and agents may
deem necessary or advisable to enable the CORPORATION to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, including specifically, but without
limitation thereof, to sign their names as a director and/or officer of the
CORPORATION to a Registration Statement on Form S-3 to be filed with the
Securities and Exchange Commission, and to any instrument or document filed as
a part of, or in connection with said Registration Statement or Amendment
thereto; and the undersigned do hereby ratify and confirm all that said
attorneys and agents shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents
this ____ day of __________, 1994.
/s/ WILLIAM T. ESREY
William T. Esrey
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned directors and/or
officers of PANHANDLE EASTERN CORPORATION (the "CORPORATION"), a Delaware
corporation, do hereby constitute and appoint JAMES B. HIPPLE, ROBERT W. REED,
and PAUL F. FERGUSON, JR., and each of them, their true and lawful attorneys
and agents to do any and all acts and things and execute any and all
instruments which, with the advice of counsel, said attorneys and agents may
deem necessary or advisable to enable the CORPORATION to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, including specifically, but without
limitation thereof, to sign their names as a director and/or officer of the
CORPORATION to a Registration Statement on or Form S-3 to be filed with the
Securities and Exchange Commission, and to any instrument or document filed as
a part of, or in connection with said Registration Statement or Amendment
thereto; and the undersigned do hereby ratify and confirm all that said
attorneys and agents shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents this
_______ day of _____________, 1994.
/s/ DENNIS HENDRIX /s/ PAUL M. ANDERSON
Dennis Hendrix Paul M. Anderson
/s/ GEORGE L. MAZANEC /s/ JAMES B. HIPPLE
George L. Mazanec James B. Hipple
Senior Vice President and
Chief Financial Officer
/s/ SANDRA P. MEYER /s/ MILTON CARROLL
Sandra P. Meyer Milton Carroll
Controller
/s/ ROBERT CIZIK /s/ CHARLES W. DUNCAN, JR.
Robert Cizik Charles W. Duncan, Jr.
/s/ HARRY E. EKBLOM ___________________________
Harry E. Ekblom William T. Esrey
/s/ ANN MAYNARD GRAY /s/ HAROLD S. HOOK
Ann Maynard Gray Harold S. Hook
/s/ LEO E. LINBECK, JR. /s/ RALPH S. O'CONNOR
Leo E. Linbeck, Jr. Ralph S. O'Connor
<PAGE> 1
SECURITIES ACT OF 1933 FILE NO: (IF APPLICATION TO DETERMINE ELIGIBILITY
OF TRUSTEE FOR DELAYED OFFERING PURSUANT TO SECTION 305(b)(2))
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)_______
____________________
THE FIRST NATIONAL BANK OF BOSTON
(Exact name of Trustee as specified in its charter)
04-2472499
(I.R.S. Employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Gary A. Spiess, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110 (617) 434-2870
____________________
PANHANDLE EASTERN CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 74-2150460
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5400 Westheimer Court
P.O. Box 1642
Houston, Texas 77251-1642
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of Indenture Securities)
================================================================================
<PAGE> 2
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.
Comptroller of the Currency of the United States, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
IF THE OBLIGOR OR ANY UNDERWRITER FOR THE OBLIGOR IS AN AFFILIATE OF
THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
None with respect to the Trustee.
(See Notes on page 2)
None with respect to Bank of Boston Corporation.
16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY
AND QUALIFICATION.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW
IN EFFECT.
A certified copy of the Articles of Association of the trustee is
filed as Exhibit No. 1 to statement of eligibility and qualification
No. 22-9514 and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO
COMMENCE BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of the certificate of T. McLean Griffin, Cashier of the
trustee, dated February 3, 1978, as to corporate succession containing copies
of the Certificate of the Comptroller of the Currency that The Massachusetts
Bank, National Association, into which The First National Bank of Boston was
merged effective January 4, 1971, is authorized to commence the business of
banking as a national banking association, as well as a certificate as to such
merger is filed as Exhibit No. 2 to statement of eligibility and qualification
No. 22-9514 and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE
CORPORATE TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2) ABOVE.
A copy of a certificate of the Office of the Currency dated February
6, 1978 is filed as Exhibit No. 3 to statement of eligibility and qualification
No. 22-9514 and is incorporated herein by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A certified copy of the existing By-Laws of the trustee dated December
23, 1993 is filed as Exhibit No. 4 to statement of eligibility and
qualifications No. 22-25754 and is incorporated herein by reference thereto.
5. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE
ACT.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto and made a part hereof.
6. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority
is annexed hereto as Exhibit 6 and made a part hereof.
<PAGE> 3
NOTES
In answering any item in this Statement of Eligibility and
Qualification which relates to matters peculiarly within the knowledge of the
obligor or any underwriter for the obligor, the trustee has relied upon
information furnished to it by the obligor and the underwriters, and the
trustee disclaims responsibility for the accuracy or completeness of such
information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
THE FIRST NATIONAL BANK OF BOSTON, A NATIONAL BANKING ASSOCIATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY CAUSED THIS
STATEMENT OF ELIGIBILITY AND QUALIFICATION TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF BOSTON AND
COMMONWEALTH OF MASSACHUSETTS, ON THE 1ST DAY OF NOVEMBER, 1994.
THE FIRST NATIONAL BANK OF BOSTON, TRUSTEE
BY /s/ HENRY W. SEEMORE
HENRY W. SEEMORE
SENIOR ACCOUNT ADMINISTRATOR
EXHIBIT 5
CONSENT OF TRUSTEE
PURSUANT TO THE REQUIREMENTS OF SECTION 321(b) OF THE TRUST INDENTURE
ACT OF 1939, IN CONNECTION WITH THE PROPOSED ISSUE OF PANHANDLE EASTERN
CORPORATION DEBT SECURITIES, WE HEREBY CONSENT THAT REPORTS OF EXAMINATIONS BY
FEDERAL, STATE, TERRITORIAL, OR DISTRICT AUTHORITIES MAY BE FURNISHED BY SUCH
AUTHORITIES TO THE SECURITIES AND EXCHANGE COMMISSION UPON REQUEST THEREFOR.
THE FIRST NATIONAL BANK OF BOSTON, TRUSTEE
BY /s/ HENRY W. SEEMORE
HENRY W. SEEMORE
SENIOR ACCOUNT ADMINISTRATOR
<PAGE> 4
EXHIBIT 6
CONSOLIDATED REPORT OF CONDITION, INCLUDING DOMESTIC
AND FOREIGN SUBSIDIARIES, OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business on June
30, 1994. Published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161. Charter number 200.
Comptroller of the Currency Northeastern District.
ASSETS
<TABLE>
<CAPTION>
DOLLAR
AMOUNTS IN
THOUSANDS
---------
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,597,212
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,006,033
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,805,830
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,077
Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,125
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . . $ 25,226,498
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . 510,109
LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . . 0
Loans and leases, net of unearned income, allowance and reserve . . . . . . . . . . . . . . . . . . . 25,226,498
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,055,276
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . 358,768
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,942
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . . 121,355
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . 377,660
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494,273
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893,037
-----------------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 35,055,086
=================
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 14,858,614
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,939,164
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,919,450
In foreign offices, Edge and Agreement subsidiaries, and IBF's . . . . . . . . . . . . . . . . . . . . . 8,075,335
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . 471,458
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,603,877
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,202,229
Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . 106,173
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49,384
Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,856,596
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . . . . . 14,096
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . 377,824
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 780,900
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913,130
-----------------
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 32,720,661
=================
Limited-life preferred stock and equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82,264
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987,398
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,285,223
LESS: Net unrealized loss on marketable equity securities . . . . . . . . . . . . . . . . . . . . . . . . (13,374)
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . (7,086)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,334,425
-----------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY . . . . . . . . . . . . . . . . . . . . $ 35,055,086
=================
</TABLE>
<PAGE> 5
I, Robert T. Jefferson, Comptroller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
ROBERT T. JEFFERSON
AUGUST 10, 1994
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined
by us, and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct.
CHARLES G. GIFFORD
IRA STEPANIAN
WAYNE A. BUDD
DIRECTORS
AUGUST 10, 1994
