REGISTRATION NO. 333-
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 22, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NATIONAL FUEL GAS COMPANY
(Exact name of registrant as specified in its charter)
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New Jersey 13-1086010
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
10 Lafayette Square
Buffalo, New York 14203
(716) 857-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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PHILIP C. ACKERMAN ROBERT J. REGER, JR., ESQ.
President THELEN REID & PRIEST LLP
10 Lafayette Square 40 West 57th Street
Buffalo, New York 14203 New York, New York 10019
(716) 857-7000 (212) 603-2000
(Names, addresses, including zip codes, and telephone numbers, including area
codes, of agents for service)
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It is respectfully requested that the Commission send copies of all orders,
notices and communications to:
TODD W. ECKLAND, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS
One Battery Park Plaza
New York, New York 10004
(212) 858-1440
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective as determined by
market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(b)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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Proposed
maximum Amount
aggregate of
Title of each class of offering registration
securities to be registered price(1)(2) fee
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Debt Securities, Common Stock,
one dollar ($1.00) par value,
Common Stock Purchase Rights................. $625,000,000 $173,750
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(1) Such indeterminate number or amount of Debt Securities or Common Stock with
Common Stock Purchase Rights as may from time to time be issued at indeterminate
prices. Since no separate consideration will be paid for the Common Stock
Purchase Rights, the registration fee for such securities is included in the fee
for the Common Stock. The value attributable to the Common Stock Purchase
Rights, if any, is reflected in the market price of the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee.
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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 SEC, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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EXPLANATORY NOTE
This registration statement contains two forms of prospectuses to be used
in connection with offerings of the following securities:
1. Debt Securities of National Fuel Gas Company.
2. Common Stock and Common Stock Purchase Rights of National Fuel Gas
Company.
Each offering of securities made under this registration statement will be
made pursuant to one of these prospectuses, with the specific terms of the
securities offered thereby set forth in an accompanying prospectus supplement.
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The information in this prospectus is not complete and may be changed. National
Fuel Gas Company may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 22, 1999
PROSPECTUS
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$___,000,000
NATIONAL FUEL GAS COMPANY
DEBT SECURITIES
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National Fuel Gas Company may offer from time to time its debt securities
(including debentures and medium-term notes).
National Fuel Gas Company will provide specific terms of its debt
securities, including their offering prices, interest rates, and maturities, in
supplements to this prospectus. The supplements may also add, update or change
information contained in this prospectus. You should read this prospectus and
any supplements carefully before you invest.
National Fuel Gas Company may offer its debt securities directly or through
underwriters, agents or dealers. The supplements to this prospectus will
describe the terms of any particular plan of distribution, including any
underwriting arrangements. The "Plan of Distribution" section on page 15 of this
prospectus also provides more information on this topic.
National Fuel Gas Company's principal executive offices are located at 10
Lafayette Square, Buffalo, New York 14203 and its telephone number is (716)
857-7000.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is , 1999.
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TABLE OF CONTENTS
NATIONAL FUEL GAS COMPANY ................................................... 3
WHERE CAN YOU FIND MORE INFORMATION ......................................... 3
RATIO OF EARNINGS TO FIXED CHARGES .......................................... 4
USE OF PROCEEDS ............................................................. 4
DESCRIPTION OF DEBT SECURITIES .............................................. 5
PLAN OF DISTRIBUTION ........................................................15
EXPERTS .....................................................................16
LEGALITY ....................................................................16
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NATIONAL FUEL GAS COMPANY
National Fuel Gas Company (National), a registered holding company under
the Public Utility Holding Company Act of 1935, was organized under the laws of
New Jersey in 1902. National is engaged in the business of owning and holding
securities issued by its subsidiaries: National Fuel Gas Distribution
Corporation, National Fuel Gas Supply Corporation, Seneca Independence Pipeline
Company, Seneca Resources Corporation, Horizon Energy Development, Inc.,
National Fuel Resources, Inc., Upstate Energy, Inc., Niagara Independence
Marketing Company, Leidy Hub, Inc., Highland Land & Minerals, Inc., Data-Track
Account Services, Inc. and Utility Constructors, Inc.
National and its subsidiaries (System) comprise a diversified energy
company consisting of five major business segments:
() the Utility segment, which sells natural gas and provides natural gas
transportation services through a local distribution system located in
western New York and northwestern Pennsylvania;
() the Pipeline and Storage segment, which provides interstate natural gas
transportation and storage services;
() the Exploration and Production segment, which is engaged in the exploration
for, and the development and purchase of, natural gas and oil reserves in
the Gulf Coast of Texas, Louisiana, and Alabama, in California, in Wyoming,
and in the Appalachian region of the United States;
() the International segment, which is engaged in foreign and domestic energy
projects through investments as a sole or substantial owner in various
business entities; and
() the Other Nonregulated segment, which engages in the marketing and
brokerage of natural gas and electricity and the performance of energy
management services for utilities and end-users, natural gas marketing and
other energy-related activities, the providing of various natural gas hub
services to customers, the marketing of timber, the operating of sawmill
and kilns, and the providing of collection services for other subsidiaries
of National.
WHERE YOU CAN FIND MORE INFORMATION
National files annual, quarterly and other reports and other information
with the SEC. You can read and copy any information filed by National with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You can obtain additional information about the Public Reference
Room by calling the SEC at 1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov) that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including National.
National also maintains an Internet site (http://www.nationalfuelgas.com).
Information contained on National's Internet site does not constitute part of
this prospectus.
The SEC allows National to "incorporate by reference" the information that
National files with the SEC, which means that National may disclose important
information to you by referring you to those documents in this prospectus. The
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information incorporated by reference is an important part of this prospectus.
National is incorporating by reference the documents listed below and any future
filings National makes with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until National sells all of these debt
securities. Any of those future filings will update, supersede and replace the
information contained in any documents incorporated by reference in this
prospectus at the time of the future filings.
1. National's Annual Report on Form 10-K for the fiscal year ended
September 30, 1998 (Form 10-K).
2. National's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1998 and March 31, 1999.
You may request a copy of these documents, at no cost to you, by writing or
calling Anna Marie Cellino, Secretary, National Fuel Gas Company, 10 Lafayette
Square, Buffalo, New York 14203, telephone (716) 857- 7858.
You should rely only on the information contained in, or incorporated by
reference in, this prospectus and the prospectus supplement. National has not,
and any underwriters, agents or dealers have not, authorized anyone else to
provide you with different information. National is not, and any underwriters,
agents or dealers are not, making an offer of these securities in any state
where the offer is not permitted. You should not assume that the information
contained in this prospectus and the prospectus supplement is accurate as of any
date other than the date on the front of the prospectus supplement or that the
information incorporated by reference in this prospectus is accurate as of any
date other than the date on the front of those documents.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows National's ratio of earnings to fixed charges for
the periods indicated:
Fiscal Years Ended September 30,
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Twelve Months ended
March 31, 1999 1998 1997 1996 1995 1994
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3.01 1.66 4.01 3.80 3.06 3.52
USE OF PROCEEDS
Except as may otherwise be set forth in the prospectus supplement, the
proceeds from the sale of these securities may be used to reduce short-term
indebtedness, to redeem or discharge higher cost indebtedness, to finance a
portion of the System's capital expenditures, for corporate development
purposes, including, without limitation, acquisitions made by or on behalf of
National or its subsidiaries, and for other general corporate purposes.
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DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description sets forth certain general terms and provisions
of National's unsecured debt securities, consisting of debentures and
medium-term notes, that National may offer by this prospectus (Debt Security or
Debt Securities). National will describe the particular terms of the Debt
Securities, and provisions that vary from those described below, in one or more
prospectus supplements.
The Debt Securities will be National's direct unsecured general
obligations. The Debt Securities will be senior debt securities. National may
issue the Debt Securities from time to time in one or more series. National will
issue the Debt Securities under one or more separate Indentures (Indenture)
between National and The Bank of New York, as trustee (Trustee).
The following descriptions of the Debt Securities and the Indenture are
summaries and are qualified by reference to the Indenture. The form of the
Indenture is being filed as an exhibit to the registration statement, and you
should read the Indenture for provisions that may be important to you.
References to certain sections of the Indenture are included in parentheses.
Whenever particular provisions or defined terms in the Indenture are referred to
under this "Description of Debt Securities," such provisions or defined terms
are incorporated by reference herein. The Indenture will be qualified under the
Trust Indenture Act of 1939. You should refer to the Trust Indenture Act of 1939
for provisions that apply to the Debt Securities.
The Debt Securities will rank equally with all of National's other senior,
unsecured and unsubordinated debt.
Because National is a holding company that conducts all of its operations
through subsidiaries, holders of Debt Securities will generally have a position
junior to claims of creditors (including trade creditors of and holders of
indebtedness issued by any such subsidiary) and preferred stockholders of the
subsidiaries of National. No subsidiary currently has outstanding shares of
preferred stock.
The prospectus supplement relating to any series of Debt Securities being
offered will include specific terms relating to that offering. These terms will
include any of the following terms that apply to that series:
() the title of the Debt Securities;
() the total principal amount of the Debt Securities;
() the date or dates on which the principal of the Debt Securities will be
payable and how it will be paid;
() the rate or rates at which the Debt Securities will bear interest, or how
such rate or rates will be determined;
() the date or dates from which interest on the Debt Securities will accrue,
the interest payment dates on which interest will be paid, and the record
dates for interest payments;
() any right to extend the interest payment periods for the Debt Securities
and the duration of the extension;
() the percentage, if less than 100%, of the principal amount of the Debt
Securities that will be payable if the maturity of the Debt Securities is
accelerated;
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() any date or dates on which, and the price or prices at which, the Debt
Securities may be redeemed at the option of National and any restrictions
on such redemptions;
() any sinking fund or other provisions or options held by holders of Debt
Securities that would obligate National to repurchase or otherwise redeem
the Debt Securities;
() any changes or additions to the Events of Default under the Indenture or
changes or additions to the covenants of National under the Indenture;
() if the Debt Securities will be issued in denominations other than $1,000;
() if payments on the Debt Securities may be made in a currency or currencies
other than United States dollars;
() any convertible feature or options regarding the Debt Securities;
() any rights or duties of another person to assume the obligations of
National with respect to the Debt Securities;
() any collateral, security, assurance or guarantee for the Debt Securities;
and
() any other terms of the Debt Securities not inconsistent with the terms of
the Indenture.
(See Section 301.)
The Indenture does not limit the principal amount of Debt Securities that
may be issued. The Indenture allows Debt Securities to be issued up to the
principal amount that may be authorized by National.
Debt Securities may be sold at a discount below their principal amount.
United States federal income tax considerations applicable to Debt Securities
sold at an original issue discount may be described in the prospectus
supplement. In addition, certain United States federal income tax or other
considerations applicable to any Debt Securities which are denominated or
payable in a currency or currency unit other than United States dollars may be
described in the prospectus supplement.
Except as may otherwise be described in the prospectus supplement, the
covenants contained in the Indenture will not afford holders of Debt Securities
protection in the event of a highly-leveraged or similar transaction involving
National or in the event of a change in control.
PAYMENT AND PAYING AGENTS
Except as may be provided in the prospectus supplement, interest, if any,
on each Debt Security payable on each Interest Payment Date will be paid to the
person in whose name such Debt Security is registered as of the close of
business on the Regular Record Date for the Interest Payment Date. However,
interest payable at maturity will be paid to the person to whom the principal is
paid. If there has been a default in the payment of interest on any Debt
Security, the defaulted interest may be paid to the holder of such Debt Security
as of the close of business on a date to be fixed by the Trustee, which will be
between 10 and 15 days prior to the date proposed by National for payment of
such defaulted interest or in any other manner permitted by any securities
exchange on which such Debt Security may be listed, if the Trustee finds it
practicable. (See Section 307.)
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Unless otherwise specified in the prospectus supplement, principal of, and
premium, if any, and interest, if any, on the Debt Securities at maturity will
be payable upon presentation of the Debt Securities at the corporate trust
office of the Trustee, in The City of New York, as Paying Agent for National.
National may change the place of payment on the Debt Securities, may appoint one
or more additional Paying Agents (including National) and may remove any Paying
Agent, all at the discretion of National. (See Section 602.)
REGISTRATION AND TRANSFER
Unless otherwise specified in the prospectus supplement, the transfer of
Debt Securities may be registered, and Debt Securities may be exchanged for
other Debt Securities of the same series or Tranche, of authorized denominations
and with the same terms and principal amount, at the corporate trust office of
the Trustee in The City of New York. National may change the place for
registration of transfer and exchange of the Debt Securities and may designate
additional places for such registration and exchange. Unless otherwise provided
in the prospectus supplement, no service charge will be made for any transfer or
exchange of the Debt Securities. However, National may require payment to cover
any tax or other governmental charge that may be imposed. National will not be
required to execute or to provide for the registration of transfer of, or the
exchange of, (a) any Debt Security during a period of 15 days prior to giving
any notice of redemption or (b) any Debt Security selected for redemption except
the unredeemed portion of any Debt Security being redeemed in part. (See Section
305.)
SATISFACTION AND DISCHARGE
National will be discharged from its obligations on the Debt Securities of
a particular series, or any portion of the principal amount of the Debt
Securities of such series, if it irrevocably deposits with the Trustee
sufficient cash or government securities to pay the principal, or portion of
principal, interest, any premium and any other sums when due on the Debt
Securities of such series at their maturity, stated maturity date, or
redemption. (See Section 701.)
The Indenture will be deemed satisfied and discharged when no Debt
Securities remain outstanding and when National has paid all other sums payable
by National under the Indenture. (See Section 702.)
All moneys National pays to the Trustee or any Paying Agent on Debt
Securities which remain unclaimed at the end of two years after payments have
become due will be paid to or upon the order of National. Thereafter, the Holder
of such Debt Security may look only to National for payment thereof. (See
Section 603.)
LIMITATION ON LIENS ON SUBSIDIARY CAPITAL STOCK
The Indenture provides that, except as otherwise specified with respect to
a particular series of Debt Securities, National will not pledge, mortgage,
hypothecate or grant a security interest in, or permit any pledge, mortgage,
security interest or other lien upon, any capital stock of any of its
majority-owned subsidiaries, which capital stock National now or hereafter
directly owns, to secure any Indebtedness, as defined below, without also
securing the outstanding Debt Securities (so long as the other Indebtedness
shall be so secured) equally and ratably, with or, at National's option, prior
to, the other Indebtedness and any other Indebtedness similarly entitled to be
so secured.
This limitation does not apply to, or prevent the creation or existence of:
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(1) any pledge, mortgage, security interest, lien or encumbrance upon any
such capital stock created at the time National acquires that capital
stock or within 270 days after that time to secure the purchase price
for that capital stock so acquired;
(2) any pledge, mortgage, security interest, lien or encumbrance upon any
such capital stock existing at the time National acquires that capital
stock, whether or not National assumes the secured obligations; or
(3) any extension, renewal, replacement or refunding of any pledge,
mortgage, security interest, lien or encumbrance permitted by (1) and
(2) above, or of any Indebtedness secured thereby; provided, that,
(a) the principal amount of Indebtedness so secured immediately after
the extension, renewal, replacement or refunding may not exceed
the principal amount of Indebtedness so secured immediately
before the extension, renewal, replacement or refunding, and
(b) the extension, renewal, replacement or refunding of such pledge,
mortgage, security interest, lien or encumbrance is limited to no
more than the same proportion of all shares of capital stock as
were covered by the pledge, mortgage, security interest, lien or
encumbrance that was extended, renewed, refunded or replaced; or
(4) any judgment, levy, execution, attachment or other similar lien
arising in connection with court proceedings, provided that:
(a) the execution or enforcement of the lien is effectively stayed
within 30 days after entry of the corresponding judgment, or the
corresponding judgment has been discharged within such 30 day
period, and the claims secured thereby are being contested in
good faith by appropriate proceedings timely commenced and
diligently prosecuted; or
(b) the payment of the lien is covered in full by insurance and the
insurance company has not denied or contested coverage thereof;
or
(c) so long as the lien is adequately bonded, any appropriate legal
proceedings that may have been duly initiated for the review of
the corresponding judgment, decree or order shall not have been
fully terminated or the period within which these proceedings may
be initiated shall not have expired.
Any pledge, mortgage, security interest, lien or encumbrance on any shares
of the capital stock of any of the majority-owned subsidiaries of National,
which shares of capital stock National now or hereafter directly owns, to secure
any Indebtedness other than as described in (1) through (4) above, is referred
to in this prospectus as a "Restricted Lien". This limitation on liens does not
apply to the extent that National creates any Restricted Liens to secure
Indebtedness that, together with all other Indebtedness of National secured by
Restricted Liens, does not at the time exceed 5% of National's Consolidated
Capitalization. (See Section 608.)
For this purpose, "Consolidated Capitalization" means the sum of:
(1) Consolidated Common Shareholders' Equity;
(2) Consolidated Indebtedness, exclusive of any that is due and payable
within one year of the date the sum is determined; and, without
duplication
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(3) any preference or preferred stock of National or any Consolidated
Subsidiary, as defined below, which is subject to mandatory redemption
or sinking fund provisions.
The term "Consolidated Common Shareholders' Equity" as used above means the
total assets of National and its Consolidated Subsidiaries that would, in
accordance with generally accepted accounting principles in the United States,
be classified on a balance sheet as assets, less: (a) all liabilities of
National and its Consolidated Subsidiaries that would, in accordance with
generally accepted accounting principles in the United States, be classified on
a balance sheet as liabilities; (b) minority interests owned by third parties in
Consolidated Subsidiaries of National; and (c) preference or preferred stock of
National and its Consolidated Subsidiaries only to the extent any such
preference or preferred stock is subject to mandatory redemption or sinking fund
provisions.
The term "Consolidated Indebtedness" means total indebtedness as shown on
the consolidated balance sheet of National and its Consolidated Subsidiaries.
The term "Consolidated Subsidiary," as used above, means at any date any
majority-owned subsidiary the financial statements of which under generally
accepted accounting principles in the United States would be consolidated with
those of National in its consolidated financial statements as of such date.
For purposes of the limitation described in the first paragraph under this
heading, "Indebtedness" means:
(1) all indebtedness created or assumed by National for the repayment of
money borrowed;
(2) all indebtedness for money borrowed secured by a lien upon capital
stock owned by National and upon which indebtedness for money borrowed
National customarily pays interest, although National has not assumed
or become liable for the payment of such indebtedness for money
borrowed; and
(3) all indebtedness of others for money borrowed which is guaranteed as
to payment of principal by National or in effect guaranteed by
National through a contingent agreement to purchase such indebtedness
for money borrowed, but excluding from this definition any other
contingent obligation of National in respect of indebtedness for money
borrowed or other obligations incurred by others.
The foregoing limitation does not limit in any manner the ability of: (1)
National to place liens on any of its assets other than the capital stock of
directly held, majority-owned subsidiaries; (2) National to cause the transfer
of its assets or those of its subsidiaries, including the capital stock covered
by the foregoing restrictions; or (3) any of the direct or indirect subsidiaries
of National to place liens on any of their assets.
In addition, the Indenture provides that if debentures issued by National
under the indenture dated as of October 15, 1974, as supplemented (1974
Indenture), between National and The Bank of New York, as trustee, in an
aggregate principal amount in excess of 5% of National's Consolidated
Capitalization become secured pursuant to the provisions of the 1974 Indenture,
National will secure the outstanding Debt Securities equally and ratably with
those debentures. If National secures the outstanding Debt Securities, as
provided in the prior sentence, and for so long as the aggregate principal
amount of the debentures secured pursuant to the 1974 Indenture at any time
decreases and as a result constitutes 5% or less of National's Consolidated
Capitalization, the outstanding Debt Securities will no longer be secured. (See
Section 608.)
As of March 31, 1999, the Consolidated Capitalization of National was
approximately $1,668 million.
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CONSOLIDATION, MERGER, AND SALE OF ASSETS
Under the terms of the Indenture, National may not consolidate with or
merge into any other entity or convey, transfer or lease its properties and
assets substantially as an entirety to any entity, unless:
() the surviving or successor entity is organized and validly existing
under the laws of any domestic jurisdiction and it expressly assumes
National's obligations on all Debt Securities and under the Indenture;
() immediately after giving effect to the transaction, no Event of
Default and no event which, after notice or lapse of time or both,
would become an Event of Default shall have occurred and be
continuing; and
() National shall have delivered to the Trustee an officer's certificate
and an opinion of counsel as to compliance with the foregoing.
The terms of the Indenture do not restrict National in a merger in which
National is the surviving entity. (See Section 1101.)
EVENTS OF DEFAULT
"Event of Default" when used in the Indenture with respect to any series of
Debt Securities, means any of the following:
() failure to pay interest, if any, on any Debt Security of the
applicable series for 30 days after it is due;
() failure to pay the principal of or premium, if any, on any Debt
Security of the applicable series when due (whether at maturity or
upon earlier redemption);
() failure to perform any other covenant in the Indenture, other than a
covenant that does not relate to that series of Debt Securities, that
continues for 90 days after National receives written notice from the
Trustee, or National and the Trustee receive a written notice from 33%
of the holders of the Debt Securities of such series; however, the
Trustee or the Trustee and the holders of such principal amount of
Debt Securities of this series can agree to an extension of the 90 day
period and such an agreement to extend will be automatically deemed to
occur if National is diligently pursuing action to correct the
default;
() certain events in bankruptcy, insolvency or reorganization of
National; or
() any other event of default included in any supplemental indenture or
officer's certificate for a specific series of Debt Securities.
(See Section 801).
The Trustee may withhold notice to the holders of Debt Securities of any
default, except default in the payment of principal, premium or interest, if it
considers such withholding of notice to be in the interests of the holders. An
Event of Default for a particular series of Debt Securities does not necessarily
constitute an Event of Default for any other series of Debt Securities issued
under the Indenture.
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REMEDIES
Acceleration of Maturity
If an Event of Default with respect to fewer than all the series of Debt
Securities occurs and continues, either the Trustee or the holders of at least
33% in principal amount of the Debt Securities of such series may declare the
entire principal amount of all the Debt Securities of such series, together with
accrued interest, to be due and payable immediately. However, if the Event of
Default is applicable to all outstanding Debt Securities under the Indenture,
only the Trustee or holders of at least 33% in principal amount of all
outstanding Debt Securities of all series, voting as one class, and not the
holders of any one series, may make such a declaration of acceleration.
At any time after a declaration of acceleration with respect to the Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the Event of Default giving rise to
such declaration of acceleration will be considered waived, and such declaration
and its consequences will be considered rescinded and annulled, if:
() National has paid or deposited with the Trustee a sum sufficient to
pay:
(1) all overdue interest, if any, on all Debt Securities of the
series;
(2) the principal of and premium, if any, on any Debt Securities of
the series which have otherwise become due and interest, if any,
that is currently due;
(3) interest, if any, on overdue interest; and
(4) all amounts due to the Trustee under the Indenture; or
() any other Event of Default with respect to the Debt Securities of that
series has been cured or waived as provided in the Indenture.
There is no automatic acceleration, even in the event of bankruptcy,
insolvency or reorganization of National. (See Section 802.)
Right to Direct Proceedings
Other than its duties in case of an Event of Default, the Trustee is not
obligated to exercise any of its rights or powers under the Indenture at the
request, order or direction of any of the holders, unless the holders offer the
Trustee a reasonable indemnity. (See Section 903.) If they provide a reasonable
indemnity, the holders of a majority in principal amount of any series of Debt
Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any power conferred upon the Trustee. However, if the Event of Default relates
to more than one series, only the holders of a majority in aggregate principal
amount of all affected series will have the right to give this direction. (See
Section 812). The Trustee is not obligated to comply with directions that
conflict with law or other provisions of the Indenture.
Limitation on Right to Institute Proceedings
No holder of Debt Securities of any series will have any right to institute
any proceeding under the Indenture, or to exercise any remedy under the
Indenture, unless:
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() the holder has previously given to the Trustee written notice of a
continuing Event of Default;
() the holders of a majority in aggregate principal amount of the
outstanding Debt Securities of all series in respect of which an Event
of Default shall have occurred and be continuing have made a written
request to the Trustee, and have offered reasonable indemnity to the
Trustee to institute proceedings; and
() the Trustee has failed to institute any proceeding for 60 days after
notice and has not received any direction inconsistent with the
written request of holders during such period.
(See Section 807.)
No Impairment of Right to Receive Payment
However, such limitations do not apply to a suit by a holder of a Debt Security
for payment of the principal of or premium, if any, or interest, if any, on a
Debt Security on or after the applicable due date. (See Section 808.)
Annual Notice to Trustee
National will provide to the Trustee an annual statement by an appropriate
officer as to National's compliance with all conditions and covenants under the
Indenture. (See Section 606.)
MODIFICATION AND WAIVER
National and the Trustee may enter into one or more supplemental indentures
without the consent of any holder of Debt Securities for any of the following
purposes:
() to evidence the assumption by any permitted successor of the covenants
of National in the Indenture and in the Debt Securities;
() to add additional covenants of National or to surrender any right or
power of National under the Indenture;
() to add additional Events of Default;
() to change, eliminate, or add any provision to the Indenture; provided,
however, if the change, elimination, or addition will adversely affect
the interests of the holders of Debt Securities of any series in any
material respect, such change, elimination, or addition will become
effective only:
(1) when the consent of the holders of Debt Securities of such series
has been obtained in accordance with the Indenture; or
(2) when no Debt Securities of the affected series remain outstanding
under the Indenture;
() to provide collateral security for all but not part of the Debt
Securities;
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() to establish the form or terms of Debt Securities of any other series
as permitted by the Indenture;
() to provide for the authentication and delivery of bearer securities
and coupons attached thereto;
() to evidence and provide for the acceptance of appointment of a
successor trustee;
() to provide for the procedures required for use of a noncertificated
system of registration for the Debt Securities of all or any series;
() to change any place where principal, premium, if any, and interest
shall be payable, Debt Securities may be surrendered for registration
of transfer or exchange and notices to National may be served; or
() to cure any ambiguity or inconsistency or to make any other provisions
with respect to matters and questions arising under the Indenture;
provided that such action shall not adversely affect the interests of
the holders of Debt Securities of any series in any material respect.
(See Section 1201.)
The holders of at least a majority in aggregate principal amount of the
Debt Securities of all series then outstanding may waive compliance by National
with certain restrictive provisions of the Indenture. (See Section 607.) The
holders of not less than a majority in principal amount of the outstanding Debt
Securities of any series may waive any past default under the Indenture with
respect to that series, except a default in the payment of principal, premium,
if any, or interest and certain covenants and provisions of the Indenture that
cannot be modified or be amended without the consent of the holder of each
outstanding Debt Security of the series affected. (See Section 813.)
If the Trust Indenture Act of 1939 is amended after the date of the
Indenture in such a way as to require changes to the Indenture, the Indenture
will be deemed to be amended so as to conform to such amendment of the Trust
Indenture Act of 1939. National and the Trustee may, without the consent of any
holders, enter into one or more supplemental indentures to evidence such an
amendment. (See Section 1201.)
The consent of the holders of a majority in aggregate principal amount of
the Debt Securities of all series then outstanding is required for all other
modifications to the Indenture. However, if less than all of the series of Debt
Securities outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the holders of a majority in aggregate
principal amount of all series that are directly affected will be required. No
such amendment or modification may:
() change the stated maturity of the principal of, or any installment of
principal of or interest on, any Debt Security, or reduce the
principal amount of any Debt Security or its rate of interest or
change the method of calculating such interest rate or reduce any
premium payable upon redemption, or change the currency in which
payments are made, or impair the right to institute suit for the
enforcement of any payment on or after the stated maturity of any Debt
Security, without the consent of the holder;
() reduce the percentage in principal amount of the outstanding Debt
Securities of any series whose consent is required for any
supplemental indenture or any waiver of compliance with a provision of
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the Indenture or any default thereunder and its consequences, or
reduce the requirements for quorum or voting, without the consent of
all the holders of the series; or
() modify certain of the provisions of the Indenture relating to
supplemental indentures, waivers of certain covenants and waivers of
past defaults with respect to the Debt Securities of any series,
without the consent of the holder of each outstanding Debt Security
affected thereby.
A supplemental indenture which changes the Indenture solely for the benefit
of one or more particular series of Debt Securities, or modifies the rights of
the holders of Debt Securities of one or more series, will not affect the rights
under the Indenture of the holders of the Debt Securities of any other series.
(See Section 1202.)
The Indenture provides that Debt Securities owned by National or anyone
else required to make payment on the Debt Securities shall be disregarded and
considered not to be outstanding in determining whether the required holders
have given a request or consent. (See Section 101.)
National may fix in advance a record date to determine the required number
of holders entitled to give any request, demand, authorization, direction,
notice, consent, waiver or other such act of the holders, but National shall
have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other act of the
holders may be given before or after such record date, but only the holders of
record at the close of business on that record date will be considered holders
for the purposes of determining whether holders of the required percentage of
the outstanding Debt Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other act
of the holders. For that purpose, the outstanding Debt Securities shall be
computed as of the record date. Any request, demand, authorization, direction,
notice, consent, election, waiver or other act of a holder shall bind every
future holder of the same Debt Securities and the holder of every Debt Security
issued upon the registration of transfer of or in exchange of such Debt
Securities. A transferee will be bound by acts of the Trustee or National taken
in reliance thereon, whether or not notation of such action is made upon such
Debt Security. (See Section 104.)
RESIGNATION OF A TRUSTEE
A Trustee may resign at any time by giving written notice to National or
may be removed at any time by act of the holders of a majority in principal
amount of all series of Debt Securities then outstanding delivered to the
Trustee and National. No resignation or removal of a Trustee and no appointment
of a successor trustee will be effective until the acceptance of appointment by
a successor trustee. So long as no Event of Default or event which, after notice
or lapse of time, or both, would become an Event of Default has occurred and is
continuing and except with respect to a Trustee appointed by act of the holders,
if National has delivered to the Trustee a resolution of its Board of Directors
appointing a successor trustee and such successor has accepted such appointment
in accordance with the terms of the respective Indenture, the Trustee will be
deemed to have resigned and the successor will be deemed to have been appointed
as trustee in accordance with such Indenture. (See Section 910.)
NOTICES
Notices to holders of Debt Securities will be given by mail to the
addresses of such holders as they may appear in the security register therefor.
(See Section 106.)
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TITLE
National, the Trustee, and any agent of National or the Trustee, may treat
the person in whose name Debt Securities are registered as the absolute owner
thereof, whether or not such Debt Securities may be overdue, for the purpose of
making payments and for all other purposes irrespective of notice to the
contrary. (See Section 308.)
GOVERNING LAW
Each Indenture and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York. (See Section 112.)
REGARDING THE TRUSTEE
The Trustee will be The Bank of New York. In addition to acting as Trustee,
The Bank of New York acts, and may act, as trustee under various indentures and
trusts of National and its affiliates.
PLAN OF DISTRIBUTION
National may sell the Debt Securities in one or more series in any of three
ways: (i) through underwriters or dealers; (ii) through agents; or (iii)
directly to a limited number of purchasers or to a single purchaser.
THROUGH UNDERWRITERS OR DEALERS. If underwriters are used in the sale, the
Debt Securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at the initial public offering price or at varying
prices determined at the time of the sale. The Debt Securities may be offered to
the public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more managing underwriters. The
underwriter or underwriters with respect to Debt Securities will be named in the
prospectus supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover page of such prospectus supplement. Unless otherwise set forth in such
prospectus supplement, the obligations of the underwriters to purchase the Debt
Securities will be subject to certain conditions precedent, and the underwriters
will be obligated to purchase all of the Debt Securities if any are purchased.
THROUGH AGENTS. Debt Securities may be sold through agents designated by
National from time to time. The prospectus supplement will set forth the name of
any agent involved in the offer or sale of the Debt Securities in respect of
which such prospectus supplement is delivered as well as any commissions payable
by National to such agent. Unless otherwise indicated in such prospectus
supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its appointment.
DIRECTLY. National may sell the Debt Securities directly to one or more
purchasers. In this case, no underwriters or agents would be involved.
GENERAL INFORMATION. The prospectus supplement with respect to the Debt
Securities will set forth the terms of the offering of such Debt Securities,
including: (a) the name or names of any underwriters, dealers or agents; (b) the
purchase price of such Debt Securities and the proceeds to National from such
sale; (c) any underwriting discounts, agents' commissions and other items
constituting underwriting compensation; (d) any initial public offering price;
and (e) any discounts or concessions allowed or reallowed or paid to dealers.
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Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If so indicated in the prospectus supplement with respect to the Debt
Securities, National may authorize agents, underwriters or dealers to solicit
offers by certain specified institutions to purchase the Debt Securities from
National at the initial public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be subject to
those conditions set forth in such prospectus supplement, and such prospectus
supplement will set forth the commission payable for solicitation of such
contracts.
Agents, underwriters and dealers may be entitled under agreements entered
into with National to indemnification by National against certain civil
liabilities, including certain liabilities under the Securities Act of 1933 or
to contribution by National with respect to payments which such agents,
underwriters and dealers may be required to make in respect thereof.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to National's most recent Annual Report on Form 10-K have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The information incorporated in this prospectus by reference to National's
most recent Annual Report on Form 10-K relating to the oil and gas reserves of
Seneca Resources Corporation, which has been specifically attributed to Ralph E.
Davis Associates, Inc., has been reviewed and verified by said firm and has been
included herein in reliance upon the authority of said firm as an expert.
LEGALITY
The legality of the Debt Securities will be passed upon for National by
Thelen Reid & Priest LLP, 40 West 57th Street, New York, New York 10019, and for
the underwriters, dealers, or agents by Winthrop, Stimson, Putnam & Roberts, One
Battery Park Plaza, New York, New York 10004. However, all matters of New Jersey
law, including the incorporation of National, will be passed upon only by
Stryker, Tams & Dill LLP, Two Penn Plaza East, Newark, New Jersey 07105.
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The information in this prospectus is not complete and may be changed. National
Fuel Gas Company may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 22, 1999
PROSPECTUS
- ----------
NATIONAL FUEL GAS COMPANY
COMMON STOCK
------------
National Fuel Gas Company may issue and sell from time to time authorized
but unissued shares of its common stock, together with attached common stock
purchase rights (collectively, Common Stock).
National Fuel Gas Company will provide specific information regarding its
Common Stock, including the number of shares of its Common Stock to be sold and
the offering price, in supplements to this prospectus. The supplements may also
add, update or change information contained in this prospectus. You should read
this prospectus and any supplements carefully before you invest.
National Fuel Gas Company may offer these shares of its Common Stock
directly or through underwriters, agents or dealers. The supplements to this
prospectus will describe the terms of any particular plan of distribution,
including any underwriting arrangements. The "Plan of Distribution" section on
page 7 of this prospectus provides more information on this topic.
National Fuel Gas Company's Common Stock is listed on the New York Stock
Exchange under the trading symbol "NFG." Any Common Stock sold pursuant to the
prospectus supplement will be listed on the New York Stock Exchange.
National Fuel Gas Company's principal executive offices are located at 10
Lafayette Square, Buffalo, New York 14203 and its telephone number is (716)
857-7000.
------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
NATIONAL FUEL GAS COMPANY.....................................................3
WHERE CAN YOU FIND MORE INFORMATION...........................................3
USE OF PROCEEDS...............................................................4
DESCRIPTION OF COMMON STOCK...................................................4
PLAN OF DISTRIBUTION..........................................................7
EXPERTS.......................................................................8
LEGALITY......................................................................8
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NATIONAL FUEL GAS COMPANY
National Fuel Gas Company (National), a registered holding company under
the Public Utility Holding Company Act of 1935, was organized under the laws of
New Jersey in 1902. National is engaged in the business of owning and holding
securities issued by its subsidiaries: National Fuel Gas Distribution
Corporation, National Fuel Gas Supply Corporation, Seneca Independence Pipeline
Company, Seneca Resources Corporation, Horizon Energy Development, Inc.,
National Fuel Resources, Inc., Upstate Energy, Inc., Niagara Independence
Marketing Company, Leidy Hub, Inc., Highland Land & Minerals, Inc., Data-Track
Account Services, Inc. and Utility Constructors, Inc.
National and its subsidiaries (System) comprise a diversified energy
company consisting of five major business segments:
() the Utility segment, which sells natural gas and provides natural gas
transportation services through a local distribution system located in
western New York and northwestern Pennsylvania;
() the Pipeline and Storage segment, which provides interstate natural gas
transportation and storage services;
() the Exploration and Production segment, which is engaged in the exploration
for, and the development and purchase of, natural gas and oil reserves in
the Gulf Coast of Texas, Louisiana, and Alabama, in California, in Wyoming,
and in the Appalachian region of the United States;
() the International segment, which is engaged in foreign and domestic energy
projects through investments as a sole or substantial owner in various
business entities; and
() the Other Nonregulated segment, which engages in the marketing and
brokerage of natural gas and electricity and the performance of energy
management services for utilities and end-users, natural gas marketing and
other energy-related activities, the providing of various natural gas hub
services to customers, the marketing of timber, the operating of sawmill
and kilns, and the providing of collection services for other subsidiaries
of National.
WHERE YOU CAN FIND MORE INFORMATION
National files annual, quarterly and other reports and other information
with the SEC. You can read and copy any information filed by National with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You can obtain additional information about the Public Reference
Room by calling the SEC at 1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov) that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including National.
National also maintains an Internet site (http://www.nationalfuelgas.com).
Information contained on National's Internet site does not constitute part of
this prospectus.
The SEC allows National to "incorporate by reference" the information that
National files with the SEC, which means that National may disclose important
information to you by referring you to those documents in this prospectus. The
information incorporated by reference is an important part of this prospectus.
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National is incorporating by reference the documents listed below and any future
filings National makes with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until National sells all of the Common
Stock. Any of those future filings will update, supersede and replace the
information contained in any documents incorporated by reference in this
prospectus at the time of the future filings.
1. National's Annual Report on Form 10-K for the fiscal year ended
September 30, 1998 (Form 10-K).
2. National's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1998 and March 31, 1999.
You may request a copy of these documents, at no cost to you, by writing or
calling Anna Marie Cellino, Secretary, National Fuel Gas Company, 10 Lafayette
Square, Buffalo, New York 14203, telephone (716) 857- 7858.
You should rely only on the information contained in, or incorporated by
reference in, this prospectus and the prospectus supplement. National has not,
and any underwriters, agents or dealers have not, authorized anyone else to
provide you with different information. National is not, and any underwriters,
agents or dealers are not, making an offer of these securities in any state
where the offer is not permitted. You should not assume that the information
contained in this prospectus and the prospectus supplement is accurate as of any
date other than the date on the front of the prospectus supplement or that the
information incorporated by reference in this prospectus is accurate as of any
date other than the date on the front of those documents.
USE OF PROCEEDS
Except as may otherwise be set forth in the prospectus supplement, the
proceeds from the sale of the Common Stock may be used to reduce short-term
indebtedness, to redeem or discharge certain maturing or redeemable long-term
indebtedness, to finance a portion of the System's capital expenditures, for
corporate development purposes, including, without limitation, acquisitions made
by or on behalf of National or its subsidiaries, and for other general corporate
purposes.
DESCRIPTION OF COMMON STOCK
The following description of National's Common Stock is a summary and is
qualified by reference to the terms and provisions of National's Restated
Certificate of Incorporation, its By-Laws, and the Rights Agreement between
National and HSBC Bank USA (Rights Agreement), which are filed as exhibits to
the registration statement and incorporated herein by reference. Reference is
also made to National's Indenture dated October 15, 1974, between National and
The Bank of New York (formerly Irving Trust Company), as supplemented (1974
Indenture).
No shares of preferred stock (Preferred Stock) of National are currently
outstanding. However, the Board of Directors of National has the ability to
issue one or more series of Preferred Stock from time to time. The actual effect
of the Preferred Stock upon the rights of the holders of National's Common Stock
will not be known until National's Board of Directors determines the respective
rights of the holders of one or more series of Preferred Stock. Such effects,
however, might include: (a) restrictions on dividends on National's Common Stock
if dividends on the Preferred Stock are in arrears; (b) dilution of the voting
power of National's Common Stock; (c) restrictions on the rights of the holders
of National's Common Stock to share in National's assets upon liquidation due to
satisfaction of any liquidation preference granted to the Preferred Stock; and
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(d) dilution of rights of holders of National's Common Stock to share in
National's assets upon liquidation if the Preferred Stock is participating with
respect to distributions upon such liquidation.
DIVIDEND RIGHTS
The holders of Common Stock are entitled to receive dividends as declared
by the Board of Directors, out of funds legally available for the purpose and
subject to a limitation in the 1974 Indenture. The 1974 Indenture prohibits the
payment of cash dividends on, and the purchase or redemption of, Common Stock if
the cumulative dividends on and amounts paid for purchase or redemption of
Common or Preferred Stock since December 31, 1967 exceed or would exceed
consolidated net income available for dividends for that same period plus $10
million plus any additional amount authorized or approved, upon application of
National, by the SEC. The amount available for the declaration and payment of
dividends on National's Common Stock pursuant to this restriction will be
described in the prospectus supplement.
The Board of Directors' ability to declare dividends on Common Stock may
also be limited by the rights and preferences of certain series of Preferred
Stock, which may be issued from time to time, and by the terms of instruments
defining the rights of holders of outstanding indebtedness of National.
VOTING RIGHTS AND CLASSIFICATION OF THE BOARD OF DIRECTORS
The holders of Common Stock are entitled to one vote per share. The
affirmative vote of the majority of the votes cast by the holders of the Common
Stock is required for the merger or consolidation of National or for the sale of
substantially all of its assets. The Board of Directors is divided into three
classes, each with, as nearly as possible, an equal number of directors.
LIQUIDATION RIGHTS
Upon any dissolution, liquidation or winding up of National, the holders of
Common Stock are entitled to receive pro rata all of National's assets and funds
remaining after payment of or provision for creditors and subject to the rights
and preferences of each series of Preferred Stock.
PREEMPTIVE RIGHTS
Holders of Common Stock and any series of Preferred Stock that may be
issued have no preemptive right to purchase or subscribe for any shares of
capital stock of National.
COMMON STOCK PURCHASE RIGHTS
The holders of the Common Stock have one right (Right) for each of their
shares. Each Right, which will initially be evidenced by the Common Stock
certificates representing the outstanding shares of Common Stock, entitles the
holder to purchase one-half of one share of Common Stock at a purchase price of
$130 per share, being $65 per half share, subject to adjustment (Purchase
Price).
The Rights become exercisable upon the occurrence of a distribution date.
At any time following a distribution date, each holder of a Right may exercise
its right to receive Common Stock (or, under certain circumstances, other
property of National) having a value equal to two times the Purchase Price of
the Right then in effect. However, the Rights are subject to redemption or
exchange by National prior to their exercise as described below.
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A distribution date would occur upon the earlier of:
() ten days after the public announcement that a person or group has
acquired, or obtained the right to acquire, beneficial ownership of
National's Common Stock or other voting stock having 10% or more of
the total voting power of National's Common Stock and other voting
stock; and
() ten days after the commencement or announcement by a person or group
of an intention to make a tender or exchange offer that would result
in that person acquiring, or obtaining the right to acquire,
beneficial ownership of National's Common Stock or other voting stock
having 10% or more of the total voting power of National's Common
Stock and other voting stock.
In certain situations after a person or group has acquired beneficial
ownership of 10% or more of the total voting power of National's stock as
described above, each holder of a Right will have the right to exercise its
Rights to receive common stock of the acquiring company having a value equal to
two times the Purchase Price of the Right then in effect. These situations would
arise if National is acquired in a merger or other business combination or if
50% or more of National's assets or earning power are sold or transferred.
At any time prior to the end of the business day on the tenth day following
the announcement that a person or group has acquired, or obtained the right to
acquire, beneficial ownership of 10% or more of the total voting power of
National, National may redeem the Rights in whole, but not in part, at a price
of $.01 per Right, payable in cash or stock. A decision to redeem the Rights
requires the vote of 75% of National's full Board of Directors. Also, at any
time following the announcement that a person or group has acquired, or obtained
the right to acquire, beneficial ownership of 10% or more of the total voting
power of National, 75% of National's full Board of Directors may vote to
exchange the Rights, in whole or in part, at an exchange rate of one share of
Common Stock, or other property deemed to have the same value, per Right,
subject to certain adjustments.
After a distribution date, Rights that are owned by an acquiring person
will be null and void. Upon exercise of the Rights, National may need additional
regulatory approvals to satisfy the requirements of the Rights Agreement. The
Rights will expire on July 31, 2008, unless they are exchanged or redeemed
earlier than that date.
The Rights have anti-takeover effects because they will cause substantial
dilution of the Common Stock if a person attempts to acquire National on terms
not approved by the Board of Directors.
BUSINESS COMBINATIONS
National's Restated Certificate of Incorporation provides that certain
conditions must be met before the consummation of any merger or other business
combination by National or any of its subsidiaries with any stockholder who is
directly or indirectly the beneficial owner of 5% or more of National's
outstanding Common Stock (Substantial Stockholder) or with an affiliate of any
Substantial Stockholder. The term Substantial Stockholder does not include
National, any of its subsidiaries, or any Trustee holding Common Stock of
National for the benefit of the employees of National or any of its subsidiaries
pursuant to one or more employee benefit plans or arrangements. The conditions,
which are in addition to those otherwise required by law, prescribe the minimum
amount per share that must be paid to holders of Common Stock and the form of
consideration paid, and require that the holders of Common Stock be furnished
certain information about the business combination prior to voting on it. A
business combination, as defined in the Restated Certificate of Incorporation,
generally means any of the following transactions:
() a merger, consolidation or share exchange;
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<PAGE>
() a sale, lease, exchange or other disposition of any assets in exchange for
property having a fair market value of more than $10 million, if determined
to be a business combination by certain directors of National in accordance
with provisions of the Restated Certificate of Incorporation;
() the issuance or transfer of securities in exchange for property having a
fair market value of more than $10 million, if determined to be a business
combination by certain directors of National in accordance with provisions
of the Restated Certificate of Incorporation;
() the adoption of a plan of liquidation or dissolution of National; or
() any reclassification of securities, recapitalization or reorganization that
has the effect of increasing the proportionate share of the outstanding
shares of any class of securities of National that is owned by any
Substantial Stockholder or by any affiliate of a Substantial Stockholder.
The approval of at least three-fourths of the entire Board of Directors or,
in the event that the Board of Directors consists of directors elected by the
holders of Preferred Stock, the approval of a majority of the entire Board, is
required to amend or repeal the classified board or business combination
provisions contained in the Restated Certificate of Incorporation.
LISTING
The Common Stock is, and will be, listed on the New York Stock Exchange.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services, L.L.C., South Hackensack, New Jersey.
PLAN OF DISTRIBUTION
National may sell the Common Stock in any of three ways: (i) through
underwriters or dealers; (ii) through agents; or (iii) directly to a limited
number of purchasers or to a single purchaser.
THROUGH UNDERWRITERS OR DEALERS. If underwriters are used in the sale, the
Common Stock will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including negotiated
transactions, at the initial public offering price or at varying prices
determined at the time of the sale. The Common Stock may be offered to the
public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more managing underwriters. The
underwriter or underwriters with respect to the Common Stock will be named in
the prospectus supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover page of such prospectus supplement. Unless otherwise set forth in such
prospectus supplement, the obligations of the underwriters to purchase the
Common Stock will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all of the Common Stock if any is
purchased.
THROUGH AGENTS. The Common Stock may be sold through agents designated by
National from time to time. The prospectus supplement will set forth the name of
any agent involved in the offer or sale of the Common Stock in respect of which
such prospectus supplement is delivered as well as any commissions payable by
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National to such agent. Unless otherwise indicated in such prospectus
supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its appointment.
DIRECTLY. National may sell the Common Stock directly to one or more
purchasers. In this case, no underwriters or agents would be involved.
GENERAL INFORMATION. The prospectus supplement with respect to the Common
Stock will set forth the terms of the offering of the Common Stock, including
(a) the name or names of any underwriters, dealers or agents, (b) the purchase
price of the Common Stock and the proceeds to National from such sale, (c) any
underwriting discounts, agents' commissions and other items constituting
underwriting compensation, (d) any initial public offering price and (e) any
discounts or concessions allowed or reallowed or paid to dealers. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If so indicated in the prospectus supplement with respect to the Common
Stock, National may authorize agents, underwriters or dealers to solicit offers
by certain specified institutions to purchase the Common Stock from National at
the initial public offering price set forth in such prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a
specified date in the future. Such contracts will be subject to those conditions
set forth in such prospectus supplement, and such prospectus supplement will set
forth the commission payable for solicitation of such contracts.
Agents, underwriters and dealers may be entitled under agreements entered
into with National to indemnification by National against certain civil
liabilities, including certain liabilities under the Securities Act of 1933, as
amended, or to contribution by National with respect to payments which such
agents, underwriters and dealers may be required to make in respect thereof.
EXPERTS
The financial statements incorporated in this prospectus by reference to
National's most recent Annual Report on Form 10-K have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
The information incorporated in this prospectus by reference to National's
most recent Annual Report on Form 10-K relating to the oil and gas reserves of
Seneca Resources Corporation, which has been specifically attributed to Ralph E.
Davis Associates, Inc., has been reviewed and verified by said firm and has been
included herein in reliance upon the authority of said firm as an expert.
LEGALITY
The legality of the Common Stock will be passed upon for National by
Thelen Reid & Priest LLP, 40 West 57th Street, New York, New York 10019, and for
the underwriters, dealers, or agents by Winthrop, Stimson, Putnam & Roberts, One
Battery Park Plaza, New York, New York 10004. However, all matters of New Jersey
law, including the incorporation of National, will be passed upon only by
Stryker, Tams & Dill LLP, Two Penn Plaza East, Newark, New Jersey 07105.
-8-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
S.E.C. Filing Fees............................................. $173,750
New York Stock Exchange Listing Fee*........................... 33,200
Printing and Engraving Expenses*............................... 70,000
Accounting Fees and Expenses*.................................. 160,000
Legal Fees and Expenses*....................................... 350,000
Fees and Expenses of Trustee*.................................. 40,000
Transfer Agent and Registrar Fees*............................. 20,000
Rating Agency Fees*............................................ 10,000
Miscellaneous*................................................. 33,050
-------
Total Expenses*......................................... $890,000
========
- ------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Ninth of National's Restated Certificate of Incorporation, as amended,
provides as follows:
"No director or officer of this corporation shall be personally liable to
the corporation or any of its shareholders for monetary damages for breach of
any duty owed to the corporation or any of its shareholders, except to the
extent that such exemption from liability is not permitted under the New Jersey
Business Corporation Act, as the same exists or may hereafter be amended, or
under any revision thereof or successor statute thereto."
Article II, Paragraph 8 of the By-Laws of National 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 pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and any
appeal therein and any inquiry or investigation which could lead to such action,
suit or proceeding ("Proceeding") by reason of the fact that such person is or
was a director or officer of the Corporation, or, while a director or officer of
the Corporation, is or was serving at the request of the Corporation as a
director, officer, trustee, employee or agent of another foreign or domestic
corporation, or of any partnership, joint venture, sole proprietorship, employee
benefit plan, trust or other enterprise, whether or not for profit, to the
fullest extent permitted and in the manner provided by the laws of the State of
New Jersey.
B. Nothing in this paragraph 8 shall restrict or limit the power of the
Corporation to indemnify its employees, agents and other persons, to advance
expenses (including attorneys' fees) on their behalf and to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation in connection with any Proceeding.
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<PAGE>
C. The indemnification provided by this paragraph 8 shall not exclude any
other rights to which a person seeking indemnification may be entitled under the
Certificate of Incorporation, By-Laws, agreement, vote of shareholders or
otherwise. The indemnification provided by this paragraph 8 shall continue as to
a person who has ceased to be a director or officer, and shall extend to the
estate or personal representative of any deceased director or officer."
Section 14A:3-5 of the New Jersey Statutes Annotated provides:
"INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES.
(1) As used in this section,
(a) "Corporate agent" means any person who is or was a director,
officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in a
consolidation or merger and any person who is or was a director, officer,
trustee, employee or agent of any other enterprise, serving as such at the
request of the indemnifying corporation, or of any such constituent
corporation, or the legal representative of any such director, officer,
trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation,
other than the indemnifying corporation, and any partnership, joint
venture, sole proprietorship, trust, or other enterprise, whether or not
for profit, served by a corporate agent;
(c) "Expenses" means reasonable costs, disbursements and counsel fees;
(d) "Liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and any
appeal therein and any inquiry or investigation which could lead to such
action, suit or proceeding; and
(f) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the indemnifying corporation" include any service as a corporate
agent which imposes duties on, or involves services by, the corporate agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner the
person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the corporation" as referred
to in this section.
(2) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses and liabilities in connection with any
proceeding involving the corporate agent by reason of his being or having
been such a corporate agent, other than a proceeding by or in the right of
the corporation, if
(a) such corporate agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of
the corporation; and
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<PAGE>
(b) with respect to any criminal proceeding, such corporate agent
had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall
not of itself create a presumption that such corporate agent did not
meet the applicable standards of conduct set forth in paragraphs
14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses in connection with any proceeding by or in the
right of the corporation to procure a judgment in its favor which involves
the corporate agent by reason of his being or having been such corporate
agent, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation. However, in
such proceeding no indemnification shall be provided in respect of any
claim, issue or matter as to which such corporate agent shall have been
adjudged to be liable to the corporation, unless and only to the extent
that the Superior Court or the court in which such proceeding was brought
shall determine upon application that despite the adjudication of
liability, but in view of all circumstances of the case, such corporate
agent is fairly and reasonably entitled to indemnity for such expenses as
the Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or
special law of this State shall indemnify a corporate agent against
expenses to the extent that such corporate agent has been successful on the
merits or otherwise in any proceeding referred to in subsections 14A:3-5(2)
and 14A:3-5(3) or in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless
ordered by a court, under subsection 14A:3-5(3), may be made by the
corporation only as authorized in a specific case upon a determination that
indemnification is proper in the circumstances because the corporate agent
met the applicable standard of conduct set forth in subsection 14A:3-5(2)
or subsection 14A:3-5(3). Unless otherwise provided in the certificate of
incorporation or bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not parties
to or otherwise involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable
and such quorum of the board of directors or committee by a majority
vote of the disinterested directors so directs, by independent legal
counsel, in a written opinion, such counsel to be designated by the
board of directors; or
(c) by the shareholders if the certificate of incorporation or
bylaws or a resolution of the board of directors or of the
shareholders so directs.
(6) Expenses incurred by a corporate agent in connection with a
proceeding may be paid by the corporation in advance of the final
disposition of the proceeding as authorized by the board of directors upon
receipt of an undertaking by or on behalf of the corporate agent to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified as provided in this section.
(7)(a) If a corporation upon application of a corporate agent has
failed or refused to provide indemnification as required under subsection
14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3) and
14A:3-5(6), a corporate agent may apply to a court for an award of
indemnification by the corporation, and such court
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<PAGE>
(i) may award indemnification to the extent authorized under
subsections 14A:3-5(2) and 14A:3-5(3) and shall award
indemnification to the extent required under subsection
14A:3-5(4), notwithstanding any contrary determination which
may have been made under subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by,
and subject to the provisions of, subsection 14A:3-5(6), if
the court shall find that the corporate agent has by his
pleadings or during the course of the proceeding raised
genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be
incurred or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the
application is for indemnification arising out of a civil
action, it shall set forth reasonable cause for the failure
to make application for such relief in the action or
proceeding in which the expenses were or are to be incurred
or other amounts were or are to be paid.
The application shall set forth the disposition of any previous application for
indemnification and shall bc made in such manner and form as may be required by
the applicable rules of court or, in the absence thereof, by direction of the
court to which it is made. Such application shall be upon notice to the
corporation. The court may also direct that notice shall be given at the expense
of the corporation to the shareholders and such other persons as it may
designate in such manner as it may require.
(8) The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of this section shall not exclude
any other rights, including the right to be indemnified against liabilities
and expenses incurred in proceedings by or in the right of the corporation,
to which a corporate agent may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or otherwise;
provided that no indemnification shall be made to or on behalf of a
corporate agent if a judgment or other final adjudication adverse to the
corporate agent establishes that his acts or omissions (a) were in breach
of his duty of loyalty to the corporation or its shareholders, as defined
in subsection (3) of N.J.S. 14A:2-7, (b) were not in good faith or involved
a knowing violation of law or (c) resulted in receipt by the corporate
agent of an improper personal benefit.
(9) Any corporation organized for any purpose under any general or
special law of this State shall have the power to purchase and maintain
insurance on behalf of any corporate agent against any expenses incurred in
any proceeding and any liabilities asserted against him by reason of his
being or having been a corporate agent, whether or not the corporation
would have the power to indemnify him against such expenses and liabilities
under the provisions of this section. The corporation may purchase such
insurance from, or such insurance may be reinsured in whole or in part by,
an insurer owned by or otherwise affiliated with the corporation, whether
or not such insurer does business with other insureds.
(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its
certificate of incorporation or bylaws authorizing the exercise of such
powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification
shall be made or expenses advanced by a corporation under this section, and
none shall be ordered by a court, if such action would be inconsistent with
a provision of the certificate of incorporation, a bylaw, a resolution of
II-4
<PAGE>
the board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause
of action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power to pay or
reimburse expenses incurred by a corporate agent in connection with the
corporate agent's appearance as a witness in a proceeding at a time when
the corporate agent has not been made a party to the proceeding."
II-5
<PAGE>
ITEM 16. EXHIBITS.
Exhibit
Number Description of Exhibits
- ------ -----------------------
(1) - Underwriting Agreements:
* - Form of Proposal and Purchase Agreement (Exhibit 1(a) in File No.
333-03803).
* - Form of Sales Agency and/or Distribution Agreement (Exhibit 1(b) in File
No. 333-03803).
* - Form of Underwriting Agreement (Exhibit B-1, File No. 70-8153).
3(i) - Articles of Incorporation:
* - Restated Certificate of Incorporation dated September 21, 1998. (Exhibit
3.1, Form 10-K for the fiscal year ended September 30, 1998 in File No.
1-3880)
3(ii)- By-Laws:
* - By-Laws as amended through September 17, 1998 (Exhibit 3.2, Form 10-K for
the fiscal year ended September 30, 1998 in File No. 1-3880).
4 - Instruments Defining the Rights of Security Holders, including
Indentures:
* - Indenture dated as October 15, 1974, between National Fuel Gas Company
and The Bank of New York (formerly Irving Trust Company) (Exhibit 2(b),
File No. 2-51796).
* - Third Supplemental Indenture dated as of December 1, 1982, to Indenture
dated as of October 15, 1974, between National Fuel Gas Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(a)(4) in File
No. 33-49401).
* - Tenth Supplemental Indenture dated as of February 1, 1992, to Indenture
dated as of October 15, 1974, between National Fuel Gas Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(a), Form 8-K
dated February 14, 1992 in File No. 1-3880).
* - Eleventh Supplemental Indenture dated as of May 1, 1992, to Indenture
dated as of October 15, 1974, between National Fuel Gas Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(b), Form 8-K
dated February 14, 1992 in File No. 1-3880).
* - Twelfth Supplemental Indenture dated as of June 1, 1992, to Indenture
dated as of October 15, 1974, between National Fuel Gas Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(c), Form 8-K
dated June 18, 1992 in File No. 1-3880).
* - Thirteenth Supplemental Indenture dated as of March 1, 1993, to Indenture
dated as of October 15, 1974, between National Fuel Gas Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(a)(14) in
File No. 33-49401).
* - Fourteenth Supplemental Indenture dated as of July 1, 1993 to Indenture
dated as of October 15, 1974 between National Fuel Gas Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4.1, Form 10-K
for fiscal year ended September 30, 1993 in File No. 1-3880).
* - Fifteenth Supplemental Indenture dated as of September 1, 1996, to
Indenture dated as of October 15, 1974 between National Fuel Gas Company
and The Bank of New York (formerly Irving Trust Company) (Exhibit 4.1,
Form 10-K for fiscal year ended September 30, 1996 in File No. 1-3880).
* - Rights Agreement amended and restated as of April 30, 1999 between
National Fuel Gas Company and HSBC Bank USA (Exhibit 99.2, Form 8-A/A
dated April 30, 1999 in File No. 1- 3880).
4(a) - Form of Indenture between National Fuel Gas Company and The Bank of New
York.
4(b) - Form of Officer's Certificate relating to Debt Securities Establishing
Senior Notes, with form of Debt Security attached.
4(c) - Form of Officer's Certificate relating to Debt Securities Establishing
Medium-Term Notes, with form of Debt Security attached.
5(a) - Opinion of Thelen Reid & Priest LLP, Counsel for National Fuel Gas
Company.
5(b) - Opinion of Stryker, Tams & Dill LLP, New Jersey Counsel for National Fuel
Gas Company.
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<PAGE>
12 - Computation of Ratio of Earnings to Fixed Charges (Exhibit 12, Form 10-Q
for the Quarterly Period ended March 31, 1999 in File No. 1-3880).
23(a)- Consent of PricewaterhouseCoopers LLP.
23(b)- Consents of Thelen Reid & Priest LLP and Stryker, Tams & Dill LLP are
contained in their opinions filed as Exhibit 5(a) and Exhibit 5(b),
respectively, to this registration statement.
23(c)- Consent of Ralph E. Davis Associates, Inc.
24 - The Power of Attorney is contained on the signature page of this
registration statement.
25 - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of The Bank of New York.
- -----------------
*Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(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.
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<PAGE>
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's Annual Report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933, and will be governed by the final adjudication of such issue.
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<PAGE>
POWER OF ATTORNEY
EACH DIRECTOR AND/OR OFFICER OF THE REGISTRANT WHOSE SIGNATURE APPEARS
BELOW HEREBY APPOINTS THE AGENTS FOR SERVICE NAMED IN THIS REGISTRATION
STATEMENT, AND EACH OF THEM SEVERALLY, AS HIS ATTORNEY-IN-FACT TO SIGN IN HIS
NAME AND ON HIS BEHALF, IN ANY AND ALL CAPACITIES STATED BELOW, AND TO FILE WITH
THE SEC, ANY AND ALL AMENDMENTS, INCLUDING POST-EFFECTIVE AMENDMENTS, TO THIS
REGISTRATION STATEMENT, AND THE REGISTRANT HEREBY ALSO APPOINTS EACH SUCH AGENT
FOR SERVICE AS ITS ATTORNEY-IN-FACT WITH THE AUTHORITY TO SIGN AND FILE ANY SUCH
AMENDMENTS IN ITS NAME AND BEHALF.
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 BUFFALO, STATE OF NEW YORK, ON THE 22ND DAY OF JULY,
1999.
NATIONAL FUEL GAS COMPANY
By: /s/ B.J. Kennedy
-----------------------
B.J. KENNEDY
(CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
Signature Title Date
--------- ----- ----
/s/ B.J. Kennedy Chairman of the Board, Chief July 22, 1999
- --------------------------- Executive Officer and Director
B.J. KENNEDY
/s/ P.C. Ackerman President, Principal Financial July 22, 1999
- --------------------------- Officer and Director
P.C. ACKERMAN
/s/ J.P. Pawlowski Treasurer and Principal July 22, 1999
- --------------------------- Accounting Officer
J.P. PAWLOWSKI
/s/ R.T. Brady Director July 22, 1999
- ---------------------------
R.T. BRADY
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<PAGE>
/s/ J.V. Glynn Director July 22, 1999
- ---------------------------
J.V. GLYNN
/s/ W.J. Hill Director July 22, 1999
- ---------------------------
W.J. HILL
/s/ B.S. Lee Director July 22, 1999
- ---------------------------
B.S. LEE
/s/ E.T. Mann Director July 22, 1999
- ---------------------------
E.T. MANN
/s/ G.L. Mazanec Director July 22, 1999
- ---------------------------
G.L. MAZANEC
/s/ G.H. Schofield Director July 22, 1999
- ---------------------------
G.H. SCHOFIELD
II-10
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Description
- ------- -----------
4(a) Form of Indenture between National Fuel Gas Company and The Bank
of New York.
4(b) Form of Officer's Certificate relating to Debt Securities
Establishing Senior Notes, with form of Debt Security attached.
4(c) Form of Officer's Certificate relating to Debt Securities
Establishing Medium-Term Notes, with form of Debt Security
attached.
5(a) Opinion of Thelen Reid & Priest LLP, Counsel for National Fuel Gas
Company.
5(b) Opinion of Stryker, Tams & Dill LLP, New Jersey Counsel for
National Fuel Gas Company.
23(a) Consent of PricewaterhouseCoopers LLP.
23(b) Consents of Thelen Reid & Priest LLP and Stryker, Tams & Dill LLP
are contained in their opinions filed as Exhibit 5(a) and Exhibit
5(b), respectively, to this registration statement.
23(c) Consent of Ralph E. Davis Associates, Inc.
24 The Power of Attorney is contained on the signature page of this
registration statement.
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York.
------------------------------------------
NATIONAL FUEL GAS COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
---------
INDENTURE
(FOR UNSECURED DEBT SECURITIES)
DATED AS OF _________, 1999
------------------------------------------
<PAGE>
i
TABLE OF CONTENTS
PARTIES..................................................................... 1
RECITAL OF THE COMPANY
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions................................................ 1
Act............................................................ 2
Affiliate...................................................... 2
Authenticating Agent........................................... 2
Authorized Officer............................................. 2
Board of Directors............................................. 2
Board Resolution............................................... 2
Business Day................................................... 2
Commission..................................................... 3
Company........................................................ 3
Company Request or Company Order............................... 3
Corporate Trust Office......................................... 3
corporation.................................................... 3
Defaulted Interest............................................. 3
Discount Security.............................................. 3
Dollar or $.................................................... 3
Eligible Obligations........................................... 3
Event of Default............................................... 3
Governmental Authority......................................... 4
Government Obligations......................................... 4
Holder......................................................... 4
Indenture...................................................... 4
Interest Payment Date.......................................... 4
Maturity....................................................... 4
1974 Indenture................................................. 4
Officer's Certificate.......................................... 4
Opinion of Counsel............................................. 5
Outstanding.................................................... 5
Paying Agent................................................... 6
Periodic Offering.............................................. 6
Person......................................................... 6
Place of Payment............................................... 6
Predecessor Security........................................... 6
Redemption Date................................................ 6
Redemption Price............................................... 6
Regular Record Date............................................ 7
Required Currency.............................................. 7
Note: This table of contents shall not, for any purpose, be deemed to be part
of the Indenture.
<PAGE>
ii
Responsible Officer............................................ 7
Security and Securities........................................ 7
Security Register and Security Registrar....................... 7
Special Record Date............................................ 7
Stated Interest Rate........................................... 7
Stated Maturity................................................ 7
Subsidiary..................................................... 7
Tranche........................................................ 7
Trust Indenture Act............................................ 8
Trustee........................................................ 8
United States.................................................. 8
SECTION 102. Compliance Certificates and Opinions...................... 8
SECTION 103. Form of Documents Delivered to Trustee.................... 9
SECTION 104. Acts of Holders........................................... 10
SECTION 105. Notices, etc. to Trustee and Company...................... 11
SECTION 106. Notice to Holders of Securities; Waiver................... 12
SECTION 107. Conflict with Trust Indenture Act......................... 13
SECTION 108. Effect of Headings and Table of Contents.................. 13
SECTION 109. Successors and Assigns.................................... 13
SECTION 110. Separability Clause....................................... 13
SECTION 111. Benefits of Indenture..................................... 13
SECTION 112. Governing Law............................................. 13
SECTION 113. Legal Holidays............................................ 14
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally........................................... 14
SECTION 202. Form of Trustee's Certificate of Authentication........... 15
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series...................... 15
SECTION 302. Denominations............................................. 19
SECTION 303. Execution, Authentication, Delivery and Dating............ 19
SECTION 304. Temporary Securities...................................... 22
SECTION 305. Registration, Registration of Transfer and Exchange....... 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.......... 24
SECTION 307. Payment of Interest; Interest Rights Preserved............ 25
SECTION 308. Persons Deemed Owners..................................... 26
SECTION 309. Cancellation by Security Registrar........................ 26
SECTION 310. Computation of Interest................................... 27
SECTION 311. Payment to Be in Proper Currency.......................... 27
SECTION 312. Extension of Interest Payment............................. 27
ARTICLE FOUR
<PAGE>
iii
Redemption of Securities
SECTION 401. Applicability of Article.................................. 28
SECTION 402. Election to Redeem; Notice to Trustee..................... 28
SECTION 403. Selection of Securities to Be Redeemed.................... 28
SECTION 404. Notice of Redemption...................................... 29
SECTION 405. Securities Payable on Redemption Date..................... 30
SECTION 406. Securities Redeemed in Part............................... 31
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.................................. 31
SECTION 502. Satisfaction of Sinking Fund Payments with Securities..... 31
SECTION 503. Redemption of Securities for Sinking Fund................. 32
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest................ 32
SECTION 602. Maintenance of Office or Agency........................... 33
SECTION 603. Money for Securities Payments to Be Held in Trust......... 33
SECTION 604. Corporate Existence....................................... 35
SECTION 605. Maintenance of Properties................................. 35
SECTION 606. Annual Officer's Certificate as to Compliance............. 35
SECTION 607. Waiver of Certain Covenants............................... 36
SECTION 608. Limitation on Liens....................................... 36
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.................. 39
SECTION 702. Satisfaction and Discharge of Indenture................... 42
SECTION 703. Application of Trust Money................................ 43
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default......................................... 43
SECTION 802. Acceleration of Maturity; Rescission and Annulment........ 45
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by Trustee ............................................ 46
SECTION 804. Trustee May File Proofs of Claim.......................... 46
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities ............................................ 47
SECTION 806. Application of Money Collected............................ 47
SECTION 807. Limitation on Suits....................................... 48
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................... 49
SECTION 809. Restoration of Rights and Remedies........................ 49
<PAGE>
iv
SECTION 810. Rights and Remedies Cumulative............................ 49
SECTION 811. Delay or Omission Not Waiver.............................. 49
SECTION 812. Control by Holders of Securities.......................... 50
SECTION 813. Waiver of Past Defaults................................... 50
SECTION 814. Undertaking for Costs..................................... 50
SECTION 815. Waiver of Stay or Extension Laws.......................... 51
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities....................... 51
SECTION 902. Notice of Defaults........................................ 52
SECTION 903. Certain Rights of Trustee................................. 52
SECTION 904. Not Responsible for Recitals or Issuance of Securities.... 53
SECTION 905. May Hold Securities....................................... 54
SECTION 906. Money Held in Trust....................................... 54
SECTION 907. Compensation and Reimbursement............................ 54
SECTION 908. Disqualification; Conflicting Interests................... 55
SECTION 909. Corporate Trustee Required; Eligibility................... 55
SECTION 910. Resignation and Removal; Appointment of Successor......... 56
SECTION 911. Acceptance of Appointment by Successor.................... 58
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business .............................................. 59
SECTION 913. Preferential Collection of Claims Against Company......... 59
SECTION 914. Co-trustees and Separate Trustees......................... 60
SECTION 915. Appointment of Authenticating Agent....................... 61
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders......................................... 63
SECTION 1002. Reports by Trustee and Company........................... 63
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, etc., Only on Certain Terms..... 63
SECTION 1102. Successor Person Substituted............................. 64
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of Holders....... 64
SECTION 1202. Supplemental Indentures With Consent of Holders.......... 66
SECTION 1203. Execution of Supplemental Indentures..................... 68
SECTION 1204. Effect of Supplemental Indentures........................ 68
SECTION 1205. Conformity With Trust Indenture Act...................... 68
SECTION 1206. Reference in Securities to Supplemental Indentures....... 68
<PAGE>
v
SECTION 1207. Modification Without Supplemental Indenture.............. 68
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called................ 69
SECTION 1302. Call, Notice and Place of Meetings....................... 69
SECTION 1303. Persons Entitled to Vote at Meetings..................... 70
SECTION 1304. Quorum; Action........................................... 70
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.................... 71
SECTION 1306. Counting Votes and Recording Action of Meetings.......... 72
SECTION 1307. Action Without Meeting................................... 72
ARTICLE FOURTEEN
Immunity of Incorporators, Shareholders, Officers and Directors
SECTION 1401. Liability Solely Corporate................................ 73
Testimonium................................................................. 72
Signatures.................................................................. 73
<PAGE>
vi
NATIONAL FUEL GAS COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _________, 1999
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a)(1) .....................................................909
(a)(2) .....................................................909
(a)(3) .....................................................914
(a)(4) ...............................................Not Applicable
(b) ........................................................908
910
ss.311 (a) ........................................................913
(b) ........................................................913
(c) ....................................................... 913
ss.312 (a) .......................................................1001
(b) .......................................................1001
(c) .......................................................1001
ss.313 (a) .......................................................1002
(b) .......................................................1002
(c) .......................................................1002
ss.314 (a) .......................................................1002
(a)(4) .....................................................606
(b) ..................................................Not Applicable
(c)(1) .....................................................102
(c)(2) .....................................................102
(c)(3) ...............................................Not Applicable
(d) ..................................................Not Applicable
(e) ........................................................102
ss.315 (a) ........................................................901
903
(b) ........................................................902
(c) ........................................................901
(d) ........................................................901
(e) ........................................................814
ss.316 (a) ........................................................812
813
(a)(1)(A) ..................................................802
812
(a)(1)(B) ..................................................813
(a)(2) ...............................................Not Applicable
(b) ........................................................808
ss.317 (a)(1) .....................................................803
(a)(2) .....................................................804
(b) ........................................................603
ss.318 (a) ........................................................107
<PAGE>
INDENTURE, dated as of _________, 1999, between NATIONAL FUEL GAS COMPANY,
a corporation duly organized and existing under the laws of the State of New
Jersey (herein called the "Company"), having its principal office at 10
Lafayette Square, Buffalo, New York 14203, and THE BANK OF NEW YORK, a banking
corporation of the State of New York, having its principal corporate trust
office at 101 Barclay Street, New York, New York 10286, as Trustee (herein
called the "Trustee").
RECITAL 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", each a "Security"), in an unlimited aggregate principal amount to
be issued in one or more series as contemplated herein; and all acts necessary
to make this Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires, capitalized terms used herein shall
have the meanings assigned to them in Article One, Section 101, of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context clearly requires otherwise:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, 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 at the
<PAGE>
-2-
date of such computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted accounting
principles applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any administrative
agency, regulatory authority or other governmental body having jurisdiction
over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six and Article Nine, are
defined in those Articles.
"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 through one or
more intermediaries, 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 (other than the Company or an
Affiliate of the Company) authorized by the Trustee pursuant to Section 915 to
act on behalf of the Trustee to authenticate one or more series of Securities or
Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary, any
Assistant Secretary or any other officer or agent of the Company duly authorized
by the Board of Directors to act in respect of matters relating to this
Indenture.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee thereof duly authorized to act in respect of matters relating to
this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or any other
particular location specified in the Securities or this Indenture, means any
day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
<PAGE>
-3-
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the date of execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body, if any, performing such duties at
such time.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by an Authorized Officer and delivered to the
Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution and delivery of this Indenture is located
on the 21st floor at 101 Barclay Street, New York, New York 10286.
"CORPORATION" means a corporation, association, company, limited liability
company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802. "Interest" with
respect to a Discount Security means interest, if any, borne by such Security at
a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
(b) with respect to Securities denominated in a currency other than Dollars
or in a composite currency, such other obligations or instruments as shall be
specified with respect to such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
<PAGE>
-4-
"GOVERNMENTAL AUTHORITY" means the government of the United States or of
any State or Territory thereof or of the District of Columbia or of any county,
municipality or other political subdivision of any of the foregoing, or any
department, agency, authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States and
entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause (a)
above or in any specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or trust company
(which may include the Trustee or any Paying Agent) subject to Federal or
state supervision or examination with a combined capital and surplus of at
least $50,000,000; and provided, further, that except as may be otherwise
required by law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the full amount
received by such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed and delivered and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Securities established as
contemplated by Section 301.
"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 provided in such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for redemption or otherwise.
"1974 INDENTURE" has the meaning specified in Section 608.
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized Officer
and delivered to the Trustee.
<PAGE>
-5-
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company, or other counsel acceptable to the Trustee and who may be an
employee of the Company or of an Affiliate of the Company.
"OUTSTANDING", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled or delivered to the Security
Registrar for cancellation;
(b) Securities deemed to have been paid for all purposes of this
Indenture in accordance with Section 701 (whether or not the Company's
indebtedness in respect thereof shall be satisfied and discharged for any
other purpose); and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are held by a bona
fide purchaser or purchasers in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor (unless
the Company, such Affiliate or such obligor owns all Securities Outstanding
under this Indenture, or (except for the purposes of actions to be taken by
Holders of (i) more than one series voting as a class under Section 812 or
(ii) more than one series or more than one Tranche, as the case may be,
voting as a class under Section 1202) all Outstanding Securities of each
such series and each such Tranche, as the case may be, determined without
regard to this clause (x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the Trustee knows to be so
owned shall be so disregarded; provided, however, that Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the reasonable 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; and
<PAGE>
-6-
(y) the principal amount of a Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 802;
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized by the
Company to pay the principal of and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series from time
to time any or all of the specific terms of which Securities, including without
limitation the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents from time to time
subsequent to the initial request for the authentication and delivery of such
Securities by the Trustee, all as contemplated in Section 301 and clause (b) of
Section 303.
"PERSON" means any individual, corporation, partnership, limited liability
partnership, joint venture, trust or unincorporated organization or any
Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities of any series,
or any Tranche thereof, means the place or places, specified as contemplated by
Section 301, at which, subject to Section 602, principal of and premium, if any,
and interest, if any, on the Securities of such series or Tranche 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 the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"REDEMPTION DATE", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture,
exclusive of accrued and unpaid interest, if any.
<PAGE>
-7-
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
Vice President, Assistant Vice President, Trust Officer or other officer of the
Trustee assigned by the Trustee to the Corporate Trust Administration Division
of the Trustee (or any successor division or department of the Trustee).
"SECURITY" and "SECURITIES" each has the meaning stated in the recital of
this Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at which an
obligation by its terms is stated to bear simple interest. Any calculation or
other determination to be made under this Indenture by reference to the Stated
Interest Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard to the Stated
Interest Rate on, or the effective cost to the Company of, any other
indebtedness in respect of which the Company's obligations are evidenced or
secured in whole or in part by such Security.
"STATED MATURITY", when used with respect to any obligation or any
installment of principal thereof or interest thereon, means the date on which
the principal of such obligation or such installment of principal or interest is
stated to be due and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"SUBSIDIARY" means a corporation of which more than 50% of the outstanding
voting stock 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 or membership
interests or other equivalents of stock that ordinarily have voting power for
the election of directors (or persons fulfilling similar responsibilities),
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"TRANCHE" means a group of Securities which (a) are of the same series and
(b) have identical terms except as to principal amount and/or date of issuance.
<PAGE>
-8-
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act of
1939, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person
acting as trustee hereunder, "Trustee" shall mean each such Person so acting.
"UNITED STATES" means the United States of America, its Territories, its
possessions and other areas subject to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action (including any covenants
compliance with which constitutes a condition precedent) have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
<PAGE>
-9-
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion are
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. Any Opinion of Counsel stated to be based upon an opinion
of other counsel shall be accompanied by a copy of such other opinion.
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.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officer's Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or dates
required with respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by or at
the request of the Company which could not have been taken had the original
document or instrument not contained such error or omission, then, to the extent
permitted by applicable law, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full force and effect,
except to the extent that such action was a result of willful misconduct or bad
faith. Without limiting the generality of the foregoing, any Securities issued
under the authority of such defective document or instrument shall nevertheless
be the valid obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding Securities.
<PAGE>
-10-
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively, may be embodied
in and evidenced by the record of Holders voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except
as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders shall be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the Trustee
and the Company deem sufficient. Where such execution is by a signer acting
in a capacity other than his or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her
authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the first proviso to the definition of Outstanding) and serial
numbers of Securities held by any Person, and the date of holding the same,
shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of
the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount
<PAGE>
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of Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to
conform, in the opinion of the Trustee and the Company, to such action may
be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series or
Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company
may, at its option, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the
close of business on the record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as
of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, election,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Trustee by
any Holder or by the Company, or 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 delivered personally to an officer or
other responsible employee of the addressee at the applicable location set forth
below or at such other location as such party may from time to time designate by
written notice, or transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic communications
address as the parties hereto shall from time to time designate by written
notice, or transmitted by certified or registered mail, charges prepaid, to the
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applicable address set below such party's name below or to such other address as
either party hereto may from time to time designate by written notice:
If to the Trustee, to:
The Bank of New York
Corporate Trust Administration, 21st Floor
101 Barclay Street
New York, New York 10286
Attention: Assistant Treasurer, Corporate Trust Administration
Telephone: (212) 815-2588
Facsimile: (212) 815-5915
If to the Company, to:
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
Attention: Controller
Telephone: (716) 857-6981
Facsimile: (716) 857-7206
Any communication contemplated herein shall be deemed to have been made,
given, furnished and filed if personally delivered, on the date of delivery, if
transmitted by facsimile transmission or other direct written electronic means,
on the date of transmission, and if transmitted by certified or registered mail,
on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail,
<PAGE>
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neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and Trustee
shall bind their respective successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or implied, shall give
to any Person, other than the parties hereto, their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, except to the extent that the
law of any other jurisdiction shall be mandatorily applicable.
<PAGE>
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SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in Securities of any series, or any Tranche thereof, or
in the indenture supplemental hereto, the Board Resolution or Officer's
Certificate which establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall apply in lieu of
this Section) payment of interest, if any, 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, and in the same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be, and, if such
payment is made or duly provided for on such Business Day, no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in substantially the form
or forms thereof established in the indenture supplemental hereto establishing
such series or in a Board Resolution establishing such series, or in an
Officer's Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of Securities of any series
are established in a Board Resolution or in an Officer's Certificate pursuant to
a Board Resolution, such Board Resolution and Officer's Certificate, if any,
shall be delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Sections 301 or 1201(g), the
Securities of each series shall be issuable in registered form without coupons.
The definitive Securities shall be produced in such manner as shall be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
<PAGE>
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SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially the
form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By: _____________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to the last
paragraph of this Section, prior to the authentication and delivery of
Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 304, 305, 306, 406 or 1206 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than the Persons in whose
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names such Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal of the Securities of such
series, or any Tranche thereof, is payable or any formulary or other method
or other means by which such date or dates shall be determined, by
reference to an index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the rate
or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or other
means by which such rate or rates shall be determined, by reference to an
index or other fact or event ascertainable outside of this Indenture or
otherwise; the date or dates from which such interest shall accrue; the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on such Securities on
any Interest Payment Date; the right of the Company, if any, to extend the
interest payment periods and the duration of any such extension as
contemplated by Section 312; and the basis of computation of interest, if
other than as provided in Section 310;
(f) the place or places at which or methods by which (1) the principal
of and premium, if any, and interest, if any, on Securities of such series,
or any Tranche thereof, shall be payable, (2) registration of transfer of
Securities of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche thereof, may be
effected and (4) notices and demands to or upon the Company in respect of
the Securities of such series, or any Tranche thereof, and this Indenture
may be served; the Security Registrar and any Paying Agent or Agents for
such series or Tranche; and if such is the case, that the principal of such
Securities shall be payable without presentment or surrender thereof;
(g) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof, may be redeemed, in
whole or in part, at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a partial
redemption by the Company of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities from any national
exchange;
(h) the obligation or obligations, if any, of the Company to redeem or
purchase the Securities of such series, or any Tranche thereof, pursuant to
any sinking fund or other mandatory redemption provisions or at the option
of a Holder thereof and the period or periods within which or the date or
<PAGE>
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dates on which, the price or prices at which and the terms and conditions
upon which such Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such series, or any
Tranche thereof, shall be issuable if other than denominations of $1,000
and any integral multiple thereof;
(j) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest, if
any, on the Securities of such series, or any Tranche thereof, shall be
payable (if other than in Dollars) and the formulary or other method or
other means by which the equivalent of any such amount in Dollars is to be
determined for any purpose, including for the purpose of determining the
principal amount of such Securities deemed to be Outstanding at any time;
(k) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable, the
period or periods within which and the terms and conditions upon which,
such election may be made;
(l) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or
other property, or the formulary or other method or other means by which
such amount shall be determined, and the period or periods within which,
and the terms and conditions upon which, any such election may be made;
(m) if the amount payable in respect of principal of or premium, if
any, or interest, if any, on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index or other fact or
event ascertainable outside of this Indenture, the manner in which such
amounts shall be determined to the extent not established pursuant to
clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in Section
801, with respect to the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the Securities of such
<PAGE>
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series, or any Tranche thereof, in addition to those set forth in Article
Six;
(p) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any other
Person;
(q) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such series, or
any Tranche thereof, denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any Tranche thereof, are to
be issued in global form, (i) any limitations on the rights of the Holder
or Holders of such Securities to transfer or exchange the same or to obtain
the registration of transfer thereof, (ii) any limitations on the rights of
the Holder or Holders thereof to obtain certificates therefor in definitive
form in lieu of temporary form and (iii) any and all other matters
incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof, are to
be issuable as bearer securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental indenture as
contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Securities
of such Series, or any Tranche thereof, to transfer or exchange such
Securities or to obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer or exchange of
Securities of such series, or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any Tranche
thereof;
(v) any collateral security, assurance or guarantee for the Securities
of such series;
(w) the non-applicability of Section 608 to the Securities of such
Series or any exceptions or modifications of Section 608 with respect to
the Securities of such Series;
(x) any rights or duties of another Person to assume the obligations
of the Company with respect to the Securities of such series (whether as
joint obligor, primary obligor, secondary obligor or substitute obligor)
and any rights or duties to discharge and release any obligor with respect
<PAGE>
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to the Securities of such series or this Indenture to the extent related to
such series; and
(y) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
With respect to Securities of a series subject to a Periodic Offering, the
indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated by clause (b) of Section 303.
Unless otherwise specified with respect to a series of Securities pursuant
to Section 301(b), any limit upon the aggregate principal amount of a series of
Securities may be increased without the consent of any Holders and additional
Securities of such series may be authenticated and delivered up to the limit
upon the aggregate principal amount authorized with respect to such series as so
increased.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, the Securities of each series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized Officer and may have the
corporate seal of the Company affixed thereto or reproduced thereon and attested
by any other Authorized Officer. The signature of any or all of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at the time of execution Authorized 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.
<PAGE>
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The Trustee shall authenticate and deliver Securities of a series, for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms and
terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of such
Securities and, to the extent that the terms of such Securities shall not
have been established in an indenture supplemental hereto or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by Sections 201 and 301,
either (i) establishing such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures, acceptable to
the Trustee, by which such terms are to be established (which procedures
may provide, to the extent acceptable to the Trustee, for authentication
and delivery pursuant to oral or electronic instructions from the Company
or any agent or agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in accordance with
the instrument or instruments delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf of the Company
by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity with
the provisions of this Indenture;
(ii) the terms of such Securities have been duly authorized by
the Company and have been established in conformity with the
provisions of this Indenture; and
(iii) such Securities, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will constitute valid
and legally binding obligations of the Company, entitled to the
benefits provided by this Indenture, and enforceable in accordance
with their terms, subject, as to enforceability, to laws relating to
or affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
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provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time of
the first authentication and delivery of such Securities (provided
that such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that, in lieu of the opinions
described in clauses (ii) and (iii) above, Counsel may opine that:
(x) when the terms of such Securities shall have been established
pursuant to a Company Order or Orders or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in accordance with
the instrument or instruments delivered pursuant to clause (a) above,
such terms will have been duly authorized by the Company and will have
been established in conformity with the provisions of this Indenture;
and
(y) such Securities, when authenticated and delivered by the
Trustee in accordance with this Indenture and the Company Order or
Orders or specified procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by the Indenture, and enforceable in accordance with their terms,
subject, as to enforceability, to laws relating to or affecting
generally the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws, and to general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, and compliance of the authentication and
delivery thereof with the terms and conditions of this Indenture, upon the
Opinion of Counsel and other documents delivered pursuant to Sections 201 and
301 and this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such opinion or
other documents have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such Securities do not
violate any applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
<PAGE>
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If the form or terms of the Securities of any series have been established
by or pursuant to a Board Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture will
materially or adversely 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.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, each Security shall be dated
the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, no Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee or an
Authenticating Agent by manual signature of an authorized signatory thereof, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
to the Company, or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver such Security to
the Security Registrar 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 Officer's Certificate or an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, then for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed, photocopied or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite specific
redemption, sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with respect to
the Securities of any series, or any Tranche thereof, after the preparation of
definitive Securities of such series or Tranche, the temporary Securities of
such series or Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon surrender of
such temporary Securities at the office or agency of the Company maintained
<PAGE>
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pursuant to Section 602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities for such exchange, the Company shall, except
as aforesaid, execute and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and Tranche of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in one of the offices designated
pursuant to Section 602, with respect to the Securities of each series, or any
Tranche thereof, a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities of such series, or any Tranche thereof, and the
registration of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each series on a
consolidated basis, and such Person is referred to herein, with respect to such
series, as the "Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices as an
office in which a register with respect to the Securities of one or more series,
or any Tranche or Tranches thereof, shall be maintained, and the Company may
designate itself the Security Registrar with respect to one or more of such
series. The Security Register shall be open for inspection by the Trustee and
the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series or Tranche at the office
or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, 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 and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the Holder, for one or more
new Securities of the same series and Tranche, of authorized denominations and
of like tenor and aggregate principal amount, upon surrender of the Securities
to be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
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and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the Security
Registrar, as the case may be, duly executed by the Holder thereof or his or her
attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with respect to
Securities of any series, or any Tranche thereof, no service charge shall be
made for any registration of transfer or exchange of Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 406 or
1206 not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series, or
any Tranche thereof, during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be reasonably required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security is held by a
Person purporting to be the owner of such Security, 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 Tranche, and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) connected therewith.
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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 other than the Holder
of such new Security, and any such new Security shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with respect to
the Securities of any series, or any Tranche thereof, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Subject to Section 312, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a date (herein called 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 on or 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,
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shall promptly cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at the address
of such Holder as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to interest which may 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 absolute owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and (subject to Section 307) interest, if any, on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if not theretofore
canceled, shall be promptly canceled by the Security Registrar. The Company may
at any time deliver to the Security Registrar for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever or which the Company shall not have issued and
sold, and all Securities so delivered shall be promptly canceled by the Security
Registrar. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Security
Registrar shall be disposed of in accordance with the Security Registrar's
customary procedures, and the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company unless, by a Company
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Order, similarly delivered, the Company shall direct that canceled Securities be
returned to it. The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to the Trustee
and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, or any Tranche thereof, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months and for any period shorter than a full calendar month, on the basis of
the actual number of days elapsed in such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche thereof,
denominated in any currency other than Dollars or in a composite currency (the
"Required Currency"), except as otherwise specified with respect to such
Securities as contemplated by Section 301, the obligation of the Company to make
any payment of the principal thereof, or the premium, if any, or interest, if
any, thereon, shall not be discharged or satisfied by any tender by the Company,
or recovery by the Trustee, in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency then due and payable. If
any such tender or recovery is in a currency other than the Required Currency,
the Trustee may take such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable therefor except in
the case of its negligence or willful misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as the Company is not
in default in the payment of interest on the Securities of any series hereunder,
to extend interest payment periods on all Securities of one or more series, if
so specified as contemplated by Section 301 with respect to such Securities and
upon such terms as may be specified as contemplated by Section 301 with respect
to such Securities.
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ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity (or, if the principal of the Securities of any
series is payable in installments, the Stated Maturity of the final installment
of the principal thereof) shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or an Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such Securities to be redeemed.
In the case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche thereof, are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Trustee from the Outstanding Securities of such series or Tranche not
previously called for redemption, by such method as shall be provided for any
particular series, or, in the absence of any such provision, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of such series or Tranche or any integral multiple
thereof) of the principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for Securities of
such series or Tranche; provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase all or any principal
amount of the Securities then Outstanding of any series, or any Tranche thereof,
and less than all of such Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
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The Trustee shall promptly notify the Company and the Security Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any series or Tranche are to be
redeemed, the identification of the particular Securities to be redeemed
and the portion of the principal amount of any Security to be redeemed in
part and, in the case of any such Security of such series to be redeemed in
part, that, on and after the Redemption Date, upon surrender of such
Security, a new Security or Securities of such series in principal amount
equal to the remaining unpaid principal amount thereof will be issued as
provided in Section 406,
(d) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if such is the
case, and
(g) such other matters as the Company shall deem desirable or
appropriate.
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Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701, such notice
may state that such redemption shall be conditional upon the receipt by the
Paying Agent or Agents for such Securities, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and premium, if
any, and interest, if any, on such Securities and that if such money shall not
have been so received such notice shall be of no force or effect and the Company
shall not be required to redeem such Securities. In the event that such notice
of redemption contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made,
and the Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such Securities
which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of the
Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Security Registrar in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the conditions, if
any, set forth in such notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless,
in the case of an unconditional notice of redemption, the Company shall default
in the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that no such surrender shall be a condition to such
payment if so specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise specified as
contemplated by Section 301 with respect to such Security, any installment of
interest on any Security the Stated Maturity of which installment is on or prior
to the Redemption Date shall be payable to the Holder of such Security, or one
or more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
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SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in part at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his or her
attorney duly authorized in writing), 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 Tranche, of any
authorized denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for Securities of such
series or Tranche.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series, or any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities (other
than any previously called for redemption) of a series or Tranche in respect of
which a mandatory sinking fund payment is to be made and (b) may apply as a
credit Securities of such series or Tranche which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
such mandatory sinking fund payment with respect to the Securities of such
series; provided, however, that no Securities shall be applied in satisfaction
of a mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
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SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall deliver to
the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by delivering and crediting Securities of such series or
Tranche pursuant to Section 502 and stating the basis for such credit and
that such Securities have not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to be so delivered.
If the Company shall have not delivered such Officer's Certificate and, to
the extent applicable, all such Securities, the next succeeding sinking fund
payment for such series or Tranche shall be made entirely in cash in the amount
of the mandatory sinking fund payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 403 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 404. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 405 and 406.
<PAGE>
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ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and interest,
if any, on the Securities of each series in accordance with the terms of such
Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the Securities of
each series, or any Tranche thereof, an office or agency where payment of such
Securities shall be made, where the registration of transfer or exchange of such
Securities may be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency and prompt notice to the Holders
of any such change in the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or shall fail to furnish the
Trustee with the address thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate one or more other offices
or agencies with respect to the Securities of one or more series, or any Tranche
thereof, for any or all of the foregoing purposes and may from time to time
rescind such designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of such series or
Tranche, no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such purposes in
each Place of Payment for such Securities in accordance with the requirements
set forth above. The Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified in Section 106, of any
such designation or rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the Company, in which
event the Company shall perform all functions to be performed at such office or
agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to the Securities of any series, or any Tranche thereof, it shall, on or before
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each due date of the principal of and premium, if any, and interest, if any, on
any of such Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and premium or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company shall promptly notify the
Trustee of any failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or interest, if any, on
such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any series,
or any Tranche thereof, other than the Company or the Trustee, to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying Agent
shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if any, on such Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent and, if so
stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and premium, if any,
or interest, if any, on any Security and remaining unclaimed for two years after
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such principal and premium, if any, or interest, if any, has become due and
payable shall be paid to the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and, upon such payment or
discharge, the Holder of such Security shall, as an unsecured general creditor
and not as a Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such payment to the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing, any unclaimed balance of such money then
remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate or legal existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in common with
others, make reasonable effort to cause) all its properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order and shall cause (or, with respect to property owned in common
with others, make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried on in
connection therewith may be properly conducted; provided, however, that nothing
in this Section shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than July 1 in each year, commencing July 1, 2000, the Company
shall deliver to the Trustee an Officer's Certificate which need not comply with
Section 102, executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company, as to (i)
such officer's knowledge of the Company's compliance with all conditions and
covenants under this Indenture, such compliance to be determined without regard
to any period of grace or requirement of notice under this Indenture and (ii)
any other statements as may be required by the provisions of Section 314(a) of
the Trust Indenture Act.
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SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in: (a) Section 602 or any additional covenant
or restriction specified with respect to the Securities of any series, or any
Tranche thereof, as contemplated by Section 301, if before the time for such
compliance the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches with respect to which
compliance with Section 602 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term,
provision or condition; and (b) Section 604, 605 or Article Eleven if before the
time for such compliance the Holders of a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 608. LIMITATION ON LIENS.
(a) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, so long as any Securities of any series are
Outstanding, the Company will not pledge, mortgage, hypothecate or grant a
security interest in, or permit any pledge, mortgage, security interest or other
lien upon, any capital stock of any Subsidiary which capital stock is now or
hereafter directly owned by the Company, to secure any Indebtedness (hereinafter
defined) without concurrently making effective provision whereby the Outstanding
Securities shall (so long as such other Indebtedness shall be so secured) be
equally and ratably secured with (or at the Company's option, prior to) any and
all such other Indebtedness and any other Indebtedness similarly entitled to be
so secured; provided, however, that this restriction shall not apply to nor
prevent the creation or existence of:
(1) any pledge, mortgage, security interest, lien or encumbrance upon
any such capital stock created at the time of the acquisition of such
capital stock by the Company, or within 270 days after such time, to secure
all or a portion of the purchase price for such capital stock;
(2) any pledge, mortgage, security interest, lien or encumbrance upon
any such capital stock existing thereon at the time of the acquisition
thereof by the Company (whether or not the obligations secured thereby are
assumed by the Company and whether or not such pledge, mortgage, security
interest, lien or encumbrance was created in contemplation of such
acquisition);
(3) any extension, renewal, replacement or refunding of any pledge,
mortgage, security interest, lien or encumbrance permitted by Subsection
(1) or (2) above or of any Indebtedness secured thereby; provided that the
principal amount of Indebtedness so secured immediately following the time
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of such extension, renewal, replacement or refunding shall not exceed the
principal amount of Indebtedness so secured immediately preceding the time
of such extension, renewal or replacement, and that such extension,
renewal, replacement or refunding of pledge, mortgage, security interest,
lien or encumbrance shall be limited to no more than the same proportion of
all shares of capital stock as were covered by the pledge, mortgage,
security interest, lien or encumbrance that was extended, renewed, replaced
or refunded; or
(4) any judgment, levy, execution, attachment or other similar lien
arising in connection with court proceedings, provided that either
(i) the execution or enforcement of each such lien is effectively
stayed within 30 days after entry of the corresponding judgment (or
the corresponding judgment has been discharged within such 30 day
period) and the claims secured thereby are being contested in good
faith by appropriate proceedings timely commenced and diligently
prosecuted;
(ii) the payment of each such lien is covered in full by
insurance and the insurance company has not denied or contested
coverage thereof; or
(iii) so long as each such lien is adequately bonded, any
appropriate legal proceedings that may have been duly initiated for
the review of the corresponding judgment, decree or order shall not
have been fully terminated or the period within which such proceedings
may be initiated shall not have expired.
For purposes of this Section 608, "Indebtedness" means all indebtedness,
whether or not represented by bonds, debentures, notes or other securities,
created or assumed by the Company for the repayment of money borrowed. All
indebtedness for money borrowed secured by a lien upon capital stock owned by
the Company and upon which indebtedness for money borrowed the Company
customarily pays interest, although the Company has not assumed or become liable
for the payment of such indebtedness for money borrowed, shall for purposes of
this Section 608 be deemed to be Indebtedness of the Company. All indebtedness
of others for money borrowed which is guaranteed as to payment of principal by
the Company or in effect guaranteed by the Company through a contingent
agreement to purchase such indebtedness for money borrowed shall for purposes of
this Section 608 be deemed to be Indebtedness of the Company, but no other
contingent obligation of the Company in respect of indebtedness for money
borrowed or other obligations incurred by others shall for purposes of this
Section 608 be deemed to be Indebtedness of the Company.
In case the Company shall propose to pledge, mortgage, hypothecate or grant
a security interest in any capital stock of any Subsidiary owned by the Company
to secure any Indebtedness, other than as permitted by Subsections (a)(1) to
(a)(4), inclusive, of this Section, the Company will prior thereto give written
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notice thereof to the Trustee, and the Company will prior to or simultaneously
with such pledge, mortgage, hypothecation or grant of security interest, by
supplemental indenture executed to the Trustee (or to the extent legally
necessary to another trustee or an additional or separate trustee), in form
satisfactory to the Trustee, effectively secure (for so long as such other
Indebtedness shall be so secured) all the Securities equally and ratably with
such Indebtedness and with (or at the Company's option, prior to) any other
Indebtedness for money borrowed similarly entitled to be so secured.
(b) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of Subsection (a) of this Section 608
shall not apply to the extent that the Company creates any Restricted Liens to
secure Indebtedness that, together with all other Indebtedness secured by
Restricted Liens, does not at the time of such creation exceed 5% of
Consolidated Capitalization.
(c) In addition to the provisions contained in Subsections (a) and (b)
above, if debentures issued by the Company under the 1974 Indenture in an
aggregate principal amount in excess of 5% of the Consolidated Capitalization of
the Company become secured pursuant to the provisions of the 1974 Indenture, the
Company will secure the Outstanding Securities equally and ratably with those
debentures; provided however, that if (and for so long as) the aggregate
principal amount of the debentures secured pursuant to the 1974 Indenture at any
time decreases and constitutes 5% or less of the Consolidated Capitalization of
the Company, the Outstanding Securities will cease to be so secured. The Trustee
shall execute and deliver such instruments as the Company may reasonably request
to effectuate the provisions of this Subsection (c).
For purposes of this Section 608:
(1) The term "Consolidated Capitalization" means the sum obtained by
adding (i) Consolidated Common Shareholders' Equity, (ii) Consolidated
Indebtedness (exclusive of any thereof which is due and payable within one
year of the date such sum is determined) and, without duplication, (iii)
any preference or preferred stock of the Company or any Consolidated
Subsidiary which is subject to mandatory redemption or sinking fund
provisions.
(2) The term "Consolidated Common Shareholders' Equity" means the
total Assets of the Company and its Consolidated Subsidiaries less (a) all
liabilities of the Company and its Consolidated Subsidiaries, (b) minority
interests owned by third parties in Consolidated Subsidiaries of the
Company, and (c) preference or preferred stock of the Company and its
Consolidated Subsidiaries only to the extent any such preference or
preferred stock is subject to mandatory redemption or sinking fund
provisions. As used in this definition, "liabilities" means all obligations
which would, in accordance with generally accepted accounting principles,
be classified on a balance sheet as liabilities, including without
limitation, (i) Consolidated Indebtedness, (ii) indebtedness secured by
property of the Company or any of its Consolidated Subsidiaries whether or
not the Company or such Consolidated Subsidiary is liable for the payment
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thereof unless, if the Company or such Consolidated Subsidiary is not so
liable, such property has not been included among the Assets of the Company
or such Consolidated Subsidiary on such balance sheet, (iii) deferred
liabilities, and (iv) indebtedness of the Company or any of its
Consolidated Subsidiaries that is expressly subordinated in right and
priority of payment to other liabilities of the Company or such
Consolidated Subsidiary.
(3) The term "Consolidated Subsidiary" means at any date any
Subsidiary the financial statements of which under generally accepted
accounting principles would be consolidated with those of the Company in
its consolidated financial statements as of such date.
(4) The "Assets" of any Person means the whole or any part of its
business, property, assets, cash and receivables, which would, in
accordance with generally accepted accounting principles, be classified on
a balance sheet as assets.
(5) The term "Consolidated Indebtedness" means total indebtedness as
shown on the consolidated balance sheet of the Company and its Consolidated
Subsidiaries.
(6) The term "1974 Indenture" means the indenture dated as of October
15, 1974, from the Company to The Bank of New York (formerly Irving Trust
Company), as trustee, as supplemented and amended.
(7) The term "Restricted Liens" means any pledge, mortgage, security
interest, lien or encumbrance upon any capital stock of any Subsidiary,
which capital stock is now or hereafter directly owned by the Company, to
secure any Indebtedness, other than any pledge, mortgage, security
interest, lien or encumbrance described in (a)(1) through (a)(4) above.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount thereof,
shall be deemed to have been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof shall be deemed to have
been satisfied and discharged, if there shall have been irrevocably deposited
with the Trustee or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
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(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by
the Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment or
redemption of less than all the Securities of any series or Tranche, such
Securities or portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice requisite to the
validity of such redemption shall have been given or irrevocable authority shall
have been given by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that
the money and Eligible Obligations deposited in accordance
with this Section shall be held in trust, as provided in
Section 703; and
(y) if Eligible Obligations shall have been deposited,
an Opinion of Counsel that the obligations so deposited
constitute Eligible Obligations and do not contain
provisions permitting the redemption or other prepayment at
the option of the issuer thereof, and an opinion of an
independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the
other requirements set forth in clause (b) and, if
applicable, (c) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of such
Officer's Certificate, its indebtedness in respect of such
Securities or portions thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in accordance
with this Section, together with the documents required by clauses (x), (y) and
(z) above, the Trustee shall, upon receipt of a Company Request, acknowledge in
writing that the Security or Securities or portions thereof with respect to
which such deposit was made are deemed to have been paid for all purposes of
this Indenture and that the entire indebtedness of the Company in respect
thereof has been satisfied and discharged as contemplated in this Section. In
the event that all of the conditions set forth in the preceding paragraph shall
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have been satisfied in respect of any Securities or portions thereof except
that, for any reason, the Officer's Certificate specified in clause (z) shall
not have been delivered, such Securities or portions thereof shall nevertheless
be deemed to have been paid for all purposes of this Indenture, and the Holders
of such Securities or portions thereof shall nevertheless be no longer entitled
to the benefits of this Indenture or of any of the covenants of the Company
under Article Six (except the covenants contained in Sections 602 and 603) or
any other covenants made in respect of such Securities or portions thereof as
contemplated by Section 301 and Section 1201(b), but the indebtedness of the
Company in respect of such Securities or portions thereof shall not be deemed to
have been satisfied and discharged prior to Maturity for any other purpose, and
the Holders of such Securities or portions thereof shall continue to be entitled
to look to the Company for payment of the indebtedness represented thereby; and,
upon Company Request, the Trustee shall acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all of the Securities of any
series, or any Tranche thereof, is to be provided for in the manner and with the
effect provided in this Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the Securities of a
series or Tranche.
In the event that Securities which shall be deemed to have been paid for
purposes of this Indenture, and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and discharged, all as provided
in this Section, do not mature and are not to be redeemed within the 60 day
period commencing with the date of the deposit of moneys or Eligible
Obligations, as aforesaid, the Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid for
purposes of this Indenture, as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304, 305, 306, 404, 503 (as
to notice of redemption), 602, 603, 907 and 915 and this Article Seven shall
survive.
The Company shall pay, and shall indemnify the Trustee or any Paying Agent
with which Eligible Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on or assessed against
such Eligible Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any such tax payable
by any entity deemed, for tax purposes, to have been created as a result of such
deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time after
a Security would be deemed to have been paid for purposes of this Indenture,
and, if such is the case, the Company's indebtedness in respect thereof would be
deemed to have been satisfied or discharged, pursuant to this Section (without
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regard to the provisions of this paragraph), the Trustee or any Paying Agent, as
the case may be, shall be required to return the money or Eligible Obligations,
or combination thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy, insolvency or
other similar law, such Security shall thereupon be deemed retroactively not to
have been paid and any satisfaction and discharge of the Company's indebtedness
in respect thereof shall retroactively be deemed not to have been effected, and
such Security shall be deemed to remain Outstanding, and (b) any satisfaction
and discharge of the Company's indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as hereinafter expressly provided), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 915 and this
Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and all money, securities and
other property then held by the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations held by the Trustee
pursuant to Section 703 and shall execute and deliver to the Company such
instruments as, in the judgment of the Company, shall be necessary, desirable or
appropriate to effect or evidence the satisfaction and discharge of this
Indenture.
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SECTION 703. APPLICATION OF TRUST MONEY.
The Eligible Obligations and the money deposited pursuant to Section 701,
and the principal and interest payments on any such Eligible Obligations, shall
not be withdrawn or used for any purpose other than, and shall be held in trust
for, the payment of the principal of and premium, if any, and interest, if any,
on the Securities or portions of principal amount thereof in respect of which
such deposit was made, all subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have occurred and be
continuing an Event of Default, any cash received from such principal or
interest payments on such Eligible Obligations, if not then needed for such
purpose, shall, to the extent practicable and upon Company Request, be invested
in Eligible Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such amounts as shall be
sufficient, together with any other moneys and the principal of and interest on
any other Eligible Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and to become due on
such Securities or portions thereof on or prior to the Maturity thereof, and
interest earned from such reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided, further, that, so long as
there shall not have occurred and be continuing an Event of Default, any moneys
held in accordance with this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over to the Company
free and clear of any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if an Event of Default
shall have occurred and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held in trust until such Event of Default
shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of such series
within 30 days after the same becomes due and payable; provided, however,
that a valid extension of the interest payment period by the Company as
contemplated in Section 312 of this Indenture shall not constitute a
failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series at its Maturity; or
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(c) failure to perform or breach of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default in
the performance of which or breach of which is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder, unless the Trustee, or the
Trustee and the Holders of a principal amount of Securities of such series
not less than the principal amount of Securities the Holders of which gave
such notice, as the case may be, shall agree in writing to an extension of
such period prior to its expiration; provided, however, that the Trustee,
or the Trustee and the Holders of such principal amount of Securities of
such series, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the Company
within such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order adjudging the
Company bankrupt or insolvent, or approving as properly filed a petition by
one or more Persons other than the Company 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 for the Company or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any such decree
or order for relief or any such other decree or order shall have remained
unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the 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 authorization of such action by the Board of Directors; or
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(f) any other Event of Default specified with respect to Securities of
such series as contemplated by Section 301 and Section 1201(c).
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of principal of, or
interest on, any series of Securities or due to the default in the performance
or breach of any other covenant or warranty of the Company applicable to the
Securities of such series but not applicable to all Outstanding Securities shall
have occurred and be continuing, either the Trustee or the Holders of not less
than 33% in principal amount of the Securities of such series may then declare
the principal amount (or, if any of the Securities of such series are Discount
Securities, such portion of the principal amount as may be specified in the
terms thereof as contemplated by Section 301) of all Securities of such series
and interest accrued thereon to be due and payable immediately. If an Event of
Default due to default in the performance of any other of the covenants or
agreements herein applicable to all Outstanding Securities or an Event of
Default specified in Section 801(d) or (e) shall have occurred and be
continuing, either the Trustee or the Holders of not less than 33% in principal
amount of all Securities then Outstanding (considered as one class), and not the
Holders of the Securities of any one of such series, may declare the principal
of all Outstanding Securities and interest accrued thereon to be due and payable
immediately. As a consequence of each such declaration (herein referred to as a
declaration of acceleration) with respect to Securities of any series, the
principal amount (or portion thereof in the case of Discount Securities) of such
Securities and interest accrued thereon shall become due and payable
immediately.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest, if any, on all Securities of such
series;
(2) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest, if any, thereon at the rate or rates
prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest, if any, upon overdue interest, at the rate or rates
prescribed therefor in such Securities; and
(4) all amounts due to the Trustee under Section 907;
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and
(b) any other Event or Events of Default with respect to Securities of
such series, other than the nonpayment of the principal of Securities of
such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section 801 shall
have occurred and be continuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securities of the series with
respect to which such Event of Default shall have occurred, the whole amount
then due and payable on such Securities for principal and premium, if any, and
interest, if any, and, to the extent permitted by law, interest on any overdue
principal and interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover any amounts due to the Trustee under Section 907. Unless otherwise
specified pursuant to Section 301 with respect to any series of Securities, the
rate or rates at which Securities shall bear interest on overdue principal,
premium, if any, and interest, if any, shall be, to the extent permitted by law,
the same rate or rates at which such Securities shall bear interest prior to
Maturity.
If the Company shall fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series shall have
occurred and be continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
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Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if
any, or interest, if any, upon presentation of the Securities in respect of
which or for the benefit of which such money shall have been collected and the
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notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
first: to the payment of all amounts due the Trustee under
Section 907;
second: to the payment of the amounts then due and unpaid upon
the Securities for principal of and premium, if any, and interest, if
any, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively; and
third: to the payment of the remainder, if any, to the Company or
to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
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such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and (subject to Sections 307
and 312) interest, if any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and the Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 306, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in respect of
a series of Securities, the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that such direction shall not be in
conflict with any rule of law or with this Indenture. The Trustee may take any
other action, deemed proper by the Trustee, which is not inconsistent with any
such direction. Before proceeding to exercise any right or power hereunder at
the direction of such Holders, the Trustee shall be entitled to receive from
such Holders reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and all
Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his or her acceptance
of a Security shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
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good faith of the claims or defenses made by such party litigant, all in the
manner, to the extent and except as otherwise provided in the Trust Indenture
Act; but the provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities of all series in
respect of which such suit may be brought, considered as one class, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of or premium, if any, or interest, if any, on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee in the
Trust Indenture Act and no implied covenants or obligations shall be
read into this Indenture against the Trustee. For purposes of Sections
315(a) and 315(c) of the Trust Indenture Act, the term "default" is
hereby defined as an Event of Default which has occurred and is
continuing.
(b) 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.
(c) Notwithstanding anything contained in this Indenture to the
contrary, the duties and responsibilities of the Trustee under this
Indenture shall be subject to the protections, exculpations and
limitations on liability afforded to the Trustee under the provisions
of the Trust Indenture Act. For the purposes of Sections 315(b)(2) and
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315(d)(2) of the Trust Indenture Act, the term "responsible officer"
is hereby defined as a Responsible Officer and the chairman or vice
chairman of the board of directors, the chairman or vice chairman of
the executive committee of the board of directors, the president, any
vice president, the secretary, any assistant secretary, the treasurer
any assistant treasurer, the cashier, any assistant cashier, any trust
officer or assistant trust officer, the controller and any assistant
controller of the Trustee, or any other officer of the Trustee
customarily performing functions similar to those performed by a
Responsible Officer or any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder known to the Trustee
with respect to the Securities of any series to the Holders of Securities of
such series in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived; provided,
however, that in the case of any default of the character specified in Section
801(c), no such notice to Holders shall be given until at least 45 days after
the occurrence thereof. For the purpose of this Section and clause (h) of
Section 903, the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable provisions
of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in good faith 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 reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
or as otherwise expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
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(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal business hours,
the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default, as the case may be, with respect to the
Securities of any series for which it is acting as Trustee unless
either (1) a Responsible Officer of the Trustee shall have actual
knowledge that such default or Event of Default, as the case may be,
exists and constitutes a default or Event of Default, as the case may
be, under this Indenture or (2) written notice of such default or
Event of Default, as the case may be, shall have been given in the
manner provided in Section 105 hereof to the Trustee by the Company,
any other obligor on such Securities or by any Holder of such
Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
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sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 908 and 913, may otherwise deal with the Company with the same rights
it would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds, except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as expressly
provided herein or otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or
advance may be attributable to the Trustee's negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and
against, any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder or the performance of its duties
hereunder, including the reasonable 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, except to the
extent any such loss, liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such other than property
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and funds held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence, wilful misconduct
or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 801(d) or Section 801(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 907 shall survive the termination of this
Indenture.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest within the
meaning of the Trust Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the effect, and subject
to the conditions, provided in the Trust Indenture Act and this Indenture. For
purposes of Section 310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee, in its capacity as trustee in respect of the
Securities of any series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities of any other
series or any securities of any series issued under the 1974 Indenture.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of
the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign government or
a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional
trustees,
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and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(c) The 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 908 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for
any cause (other than as contemplated in clause (y) in Subsection (d)
of this Section), with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all
of such series and that (subject to Section 914) at any time there
shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements
of Section 911. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 911, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in
the manner required by Section 911, any Holder who has been a bona
fide Holder of a Security of such series for at least six months may,
on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred
and be continuing, and except with respect to a Trustee appointed by
Act of the Holders of a majority in principal amount of the
Outstanding Securities pursuant to Subsection (e) of this Section, if
the Company shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date specified
therein, and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in accordance
with Section 911, the Trustee shall be deemed to have resigned as
contemplated in Subsection (b) of this Section, the successor Trustee
shall be deemed to have been appointed by the Company pursuant to
Subsection (e) of this Section and such appointment shall be deemed to
have been accepted as contemplated in Section 911, all as of such
date, and all other provisions of this Section and Section 911 shall
be applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this Subsection (f).
(g) The Company (or, should the Company fail so to act promptly,
the successor trustee at the expense of the Company) shall give notice
of each resignation and each removal of the Trustee with respect to
the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses
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appear in the Security Register. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series
and the address of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of all series, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of such series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed and conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee, upon payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such
successor Trustee all such rights, powers and trusts referred to in
Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such Person 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 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or any other
obligor upon the Securities (other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee shall be subject to any
and all applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor. For purposes of
Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
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SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal requirements of
any applicable jurisdiction, the Company and the Trustee shall have power to
appoint, and, upon the written request of the Trustee or of the Holders of at
least 33% in principal amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Company does not join in such appointment within 15 days after the receipt by it
of a request so to do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the Company be required
by any co-trustee or separate trustee so appointed to more fully confirm to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Company.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred
or imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee;
(c) the Trustee at any time, by an instrument in writing executed
by it, with the concurrence of the Company, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this
Section, and, if an Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the Trustee,
the Company shall join with the Trustee in the execution and delivery
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of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
the Securities of one or more series, or Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance and upon exchange, registration
of transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. 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, any State or territory 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 all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
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the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, in accordance with, and
subject to the provisions of, Section 907.
The provisions of Sections 308, 904 and 905 shall be applicable to each
Authenticating Agent.
If an appointment with respect to the Securities of one or more series, or
any Tranche thereof, shall be made pursuant to this Section, the Securities of
such series or Tranche may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: ________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Signatory
If all of the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
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ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than July 1 and January 1 in each year, commencing
January 1, 2000, and at such other times as the Trustee may request in writing,
the Company shall furnish or cause to be furnished to the Trustee information as
to the names and addresses of the Holders, and the Trustee shall preserve such
information and similar information received by it in any other capacity and
afford to the Holders access to information so preserved by it, all to such
extent, if any, and in such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be furnished so long as the
Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than July 15 in each year, commencing July 1, 2000, the Trustee
shall transmit to the Holders, the Commission and each securities exchange upon
which any Securities are listed, a report, dated as of the next preceding May
15, with respect to any events and other matters described in Section 313(a) of
the Trust Indenture Act, in such manner and to the extent required by the Trust
Indenture Act. The Trustee shall transmit to the Holders, the Commission and
each securities exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing with the Commission in
the case of reports which pursuant to the Trust Indenture Act must be filed with
the Commission and furnished to the Trustee) and transmit to the Holders, such
other information, reports and other documents, if any, at such times and in
such manner, as shall be required by the Trust Indenture Act. The Company shall
notify the Trustee of the listing of any Securities on any securities exchange.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person, or
convey or otherwise transfer or lease its properties and assets substantially as
an entirety to any Person, unless
(a) 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 Person organized and validly
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existing under the laws of the United States, any State thereof or the
District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all
Outstanding Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transactions
have been complied with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 1101, the successor Person formed by such consolidation or into which
the Company is merged or the Person to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities, all as provided in Article
Eleven; or
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(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any right or power
herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all
or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to
add any new provision to this Indenture; provided, however, that if
such change, elimination or addition shall adversely affect the
interests of the Holders of Securities of any series or Tranche
Outstanding on the date of such indenture supplemental hereto in any
material respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of such series
or Tranche remains Outstanding; or
(e) to provide collateral security for all but not part of the
Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for
any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee or co-trustee with
respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 911(b); or
(i) to provide for the procedures required to permit the Company
to utilize, at its option, a noncertificated system of registration
for all, or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
or
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(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other changes to the provisions hereof or to
add other provisions with respect to matters or questions arising
under this Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of Securities
of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture
Act as in effect at the date of the execution and delivery of this Indenture or
at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes
to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust Indenture Act,
and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to effect or
evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the
date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the Company
and the Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to evidence such amendment
hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in aggregate principal amount
of the Securities of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and 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 modifying in any manner the rights of the
Holders of Securities of such series under the Indenture; provided, however,
that if there shall be Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such series, then
the consent only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
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Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall:
(a) 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 the amount of any
installment of interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption thereof, or reduce
the amount of the principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 802, or change the coin or currency (or other property) in which
any Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity of any Security (or, in the case of redemption,
on or after the Redemption Date), without, in any such case, the consent of
the Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1304 for quorum or
voting, without, in any such case, the consent of the Holders of each
Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, or any Tranche
thereof, except to increase the percentages in principal amount referred to
in this Section or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in accordance
with the requirements of Sections 911(b), 914 and 1201(h).
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 one or more Tranches
thereof, 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 or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof. A waiver by a
Holder of such Holder's right to consent under this Section shall be deemed to
be a consent of such Holder.
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SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by this Article may
restate this Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officer's Certificate as contemplated by
Section 301, and not in an indenture supplemental hereto, additions to, changes
in or the elimination of any of such terms may be effected by means of a
supplemental Board Resolution or Officer's Certificate, as the case may be,
delivered to, and accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate shall not be accepted by
the Trustee or otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such additions, changes or
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elimination were contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the Trustee, any such
supplemental Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such time
and (except as provided in subsection (b) of this Section) at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at any other place. Notice
of every such meeting, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall
be given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) The Trustee may be asked to call a meeting of the Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 33% in aggregate principal
amount of all of such series and Tranches, considered as one class, for any
purpose specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting. If the
Trustee shall have been asked by the Company to call such a meeting, the
Company shall determine the time and place for such meeting and may call
such meeting by giving notice thereof in the manner provided in Subsection
(a) of this Section, or shall direct the Trustee, in the name and at the
expense of the Company, to give such notice. If the Trustee shall have been
asked by Holders to call such a meeting in accordance with this Subsection
(b), and the Trustee shall not have given the notice of such meeting within
21 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Holders of
Securities of such series and Tranches, in the principal amount above
specified, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as shall be
determined or approved by the Company, for such meeting and may call such
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meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice
if the Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company and the
Trustee are present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such series, or any
Tranche or Tranches thereof, or by such of them as are not present at the
meeting in person or by proxy, and by the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, a Person shall be (a)
a Holder of one or more Outstanding Securities of such series or Tranches, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any meeting adjourned for more
than 30 days shall be given as provided in Section 1302(a) not less than 10 days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
<PAGE>
-71-
Except as limited by Section 1202, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may
be adopted only by the affirmative vote of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and Tranches,
considered as one class, may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Securities
with respect to which it was given unless and until specifically revoked by
the Holder or future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to proof of the holding of
such Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1302(b), in
which case the Company or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
<PAGE>
-72-
to vote a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1 principal amount of Outstanding Securities held or represented
by such Holder; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security
or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders shall be
by written ballots on which shall be subscribed the signatures of the Holders or
of their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities, of the series and Tranches with respect to which
the meeting shall have been called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated in
this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
<PAGE>
-73-
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or premium, if
any, or interest, if any, on any Securities, or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, shareholder, officer or director, as such,
past, present or future of the Company or of any predecessor or successor
corporation (either directly or through the Company or a predecessor or
successor corporation), whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
the Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, shareholder,
officer or director, past, present or future, of the Company or of any
predecessor or successor corporation, either directly or indirectly through the
Company or any predecessor or successor corporation, because of the indebtedness
hereby authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
-------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE>
-74-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
NATIONAL FUEL GAS COMPANY
By:
-------------------------------
P.C. Ackerman
President
THE BANK OF NEW YORK, Trustee
By:
-------------------------------
[Name]
[Title]
NATIONAL FUEL GAS COMPANY
OFFICER'S CERTIFICATE
Establishing Senior Notes
Joseph P. Pawlowski, the Treasurer of National Fuel Gas Company, a New
Jersey corporation (the "Company"), pursuant to the authority granted in the
Board Resolutions of the Company dated _________, 199_, and Sections 201 and 301
of the Indenture defined herein, does hereby certify to The Bank of New York
(the "Trustee"), as Trustee under the Indenture of the Company (For Unsecured
Debt Securities) dated as of _______ 1, 1999 (the "Indenture") that:
1. The securities of the first series to be issued under the Indenture shall
be designated "_____% Senior Notes due ____" (the "Senior Notes of the
First Series"). All capitalized terms used in this certificate which are
not defined herein shall have the meanings set forth in the Indenture;
2. The Senior Notes of the First Series shall mature and the principal thereof
shall be due and payable together with all accrued and unpaid interest
thereon on _______, ____;
3. The Senior Notes of the First Series shall be issued in the denominations
of $_____ [if other than denominations of $1,000] and any integral multiple
thereof;
4. The Senior Notes of the First Series shall bear interest as provided in the
form attached hereto as Exhibit A;
5. The principal of, premium, if any, and each installment of interest on the
Senior Notes of the First Series shall be payable at, and registration and
registration of transfers and exchanges in respect of the Senior Notes of
the First Series may be effected at, the office or agency of the Company in
The City of New York; provided that payment of interest may be made at the
option of the Company by check mailed to the address of the persons
entitled thereto or by wire transfer to an account designated by the person
entitled thereto. Notices and demands to or upon the Company in respect of
the Senior Notes of the First Series may be served at the office or agency
of the Company in The City of New York. The Corporate Trust Office of the
Trustee will initially be the agency of the Company for such payment,
registration and registration of transfers and exchanges and service of
notices and demands and the Company hereby appoints the Trustee as its
agent for all such purposes; provided, however, that the Company reserves
the right to change, by one or more Officer's Certificates, any such office
or agency and such agent. The Trustee will initially be the Security
Registrar and the Paying Agent for the Senior Notes of the First Series;
6. The Senior Notes of the First Series shall be redeemable as provided in the
form thereof attached hereto as Exhibit A;
7. [Extension of interest payment provisions, if any, will be inserted here];
8. The Senior Notes of the First Series shall be initially issued in global
form registered in the name of Cede & Co. (as nominee of The Depository
Trust Company, New York, New York). The Senior Notes of the First Series in
global form shall bear the depository legend in substantially the form
attached hereto as Exhibit A, containing certain restrictions on transfer;
9. No service charge will be made for the registration of transfer or exchange
of the Senior Notes of the First Series; provided, however, that the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with the exchange or
transfer;
10. If the Company shall make any deposit of money and/or Eligible Obligations
with respect to any Senior Notes of the First Series, or any portion of the
principal amount thereof, as contemplated by Section 701 of the Indenture,
the Company shall not deliver an Officer's Certificate described in clause
(z) in the first paragraph of said Section 701 unless the Company shall
also deliver to the Trustee, together with such Officer's Certificate,
either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of the Senior
Notes of the First Series, shall assume the obligation (which shall be
absolute and unconditional) to irrevocably deposit with the Trustee or
Paying Agent such additional sums of money, if any, or additional Eligible
Obligations (meeting the requirements of Section 701), if any, or any
combination thereof, at such time or times, as shall be necessary, together
with the money and/or Eligible Obligations theretofore so deposited, to pay
when due the principal of and premium, if any, and interest, if any, due
and to become due on such Senior Notes of the First Series or portions
thereof, all in accordance with and subject to the provisions of said
Section 701; provided, however, that such instrument may state that the
obligation of the Company to make additional deposits as aforesaid shall be
subject to the delivery to the Company by the Trustee of a notice asserting
the deficiency accompanied by an opinion of an independent public
accountant of nationally recognized standing, selected by the Trustee,
showing the calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a result of (i) the
receipt by the Company from, or the publication by, the Internal Revenue
Service of a ruling or (ii) a change in law occurring after the date of
this certificate, the Holders of such Senior Notes of the First Series, or
portions of the principal amount thereof, will not recognize income, gain
or loss for United States federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in respect thereof
and will be subject to United States federal income tax on the same
amounts, at the same times and in the same manner as if such satisfaction
and discharge had not been effected;
11. The Senior Notes of the First Series shall have such other terms and
provisions as are provided in the form thereof attached hereto as Exhibit
A, and shall be issued in substantially such form;
12. The undersigned has read all of the covenants and conditions contained in
the Indenture relating to the Company's issuance of the Senior Notes of the
First Series and the definitions in the Indenture relating thereto, the
compliance with which this certificate addresses;
13. The statements contained in this certificate are based upon the familiarity
of the undersigned with the Indenture and the documents accompanying this
certificate, and upon discussions by the undersigned with officers and
employees of the Company familiar with the matters set forth herein;
14. In the opinion of the undersigned, he has made such examination or
investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenants and conditions have been complied with;
and
15. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any (including any covenants compliance with which
constitutes a condition precedent), to the authentication and delivery of
the Senior Notes of the First Series requested in the accompanying Company
Order have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's Certificate this ____
day of _____, 199_.
-----------------------------
Treasurer
<PAGE>
EXHIBIT A
[depository legend]
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[FORM OF FACE OF SENIOR NOTE]
NATIONAL FUEL GAS COMPANY
_____% SERIES A SENIOR NOTES DUE ____
NATIONAL FUEL GAS COMPANY, a corporation duly organized and existing under
the laws of the State of New Jersey (herein referred to as the "Company", which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
or registered assigns, the principal sum of ____________________ Dollars on
_________, ____, and to pay interest on said principal sum [semi-annually]
[quarterly] on _________ of each year (each an Interest Payment Date) commencing
_________, at the rate of _____% per annum until the principal hereof is paid or
made available for payment. Interest on the Securities of this series shall
accrue from __________, 199_, to the first Interest Payment Date, and thereafter
shall accrue from the last Interest Payment Date to which interest has been paid
or duly provided for. In the event that any Interest Payment Date is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of such delay) with the same force and effect as if made on
such Interest Payment Date. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be [the __th day of the calendar month next
preceding such Interest Payment Date]. [Subject to the extension of interest
payment provisions,] Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, the State of New York in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that, at the option of
the Company, interest on this Security may be paid by check mailed to the
address of the person entitled thereto, as such address shall appear on the
Security Register or by wire transfer to an account designated by the person
entitled thereto.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NATIONAL FUEL GAS COMPANY
By:_______________________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SENIOR NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture (For Unsecured Debt Securities), dated as of
_________, 1999 (herein, together with any amendments or supplements thereto,
called the "Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture, including the Board
Resolutions and Officer's Certificate filed with the Trustee on _______ __, 199_
creating the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof.
[Redemption provisions will be inserted here].
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of the Company in respect of this Security, or any portion of the
principal amount thereof, upon compliance with certain conditions set forth in
the Indenture, including the Officer's Certificate described above.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless (a) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, (b) the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee, (c) such Holder shall have offered the
Trustee reasonable indemnity, (d) the Trustee shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity, and (e) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of Securities of all series at the time
Outstanding in respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or [,subject to the extension
of interest payment provisions,] interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
[Extension of interest payment provisions, if any, will be inserted here].
The Securities of this series are issuable only in registered form without
coupons in denominations of $_____. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
transferable to a transferee or transferees, as designated by the Holder
surrendering the same for such registration of transfer, and exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
and of authorized denominations, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
NATIONAL FUEL GAS COMPANY
OFFICER'S CERTIFICATE
Establishing Medium-Term Notes
Joseph P. Pawlowski, the Treasurer of National Fuel Gas Company, a New
Jersey corporation (the "Company"), pursuant to the authority granted in the
Board Resolutions of the Company dated _________, 199_, and Sections 201 and 301
of the Indenture defined herein, does hereby certify to The Bank of New York
(the "Trustee"), as Trustee under the Indenture of the Company (For Unsecured
Debt Securities) dated as of _______ 1, 1999 (the "Indenture") that:
1. The securities of the first series to be issued under the Indenture shall
be designated "Medium-Term Notes Series A" (the "Medium-Term Notes of the
First Series"). All capitalized terms used in this certificate which are
not defined herein shall have the meanings set forth in the Indenture;
2. The Medium-Term Notes of the First Series shall mature, and the principal
thereof shall be due and payable together with all accrued and unpaid
interest, on such date not less than [nine months] nor more than [forty]
years from the date of issuance, as shall be specified in the Medium-Term
Notes of the First Series, a form of which is hereto attached as Exhibit A,
and communicated by the Company to the Trustee by a written order pursuant
to Company Order No. __ of even date herewith;
3. The Medium-Term Notes of the First Series shall be issued in the
denominations of $_____ [if other than denominations of $1,000] and any
integral multiple thereof;
4. The Medium-Term Notes of the First Series shall bear interest as shall be
specified in the Medium-Term Notes of the First Series, a form of which is
hereto attached as Exhibit A, and communicated by the Company to the
Trustee by a written order pursuant to Company Order No. __ of even date
herewith;
5. The principal of, premium, if any, and each installment of interest on the
Medium-Term Notes of the First Series shall be payable at, and registration
and registration of transfers and exchanges in respect of the Medium-Term
Notes of the First Series may be effected at, the office or agency of the
Company in The City of New York; provided that payment of interest may be
made at the option of the Company by check mailed to the address of the
persons entitled thereto or by wire transfer to an account designated by
the person entitled thereto. Notices and demands to or upon the Company in
respect of the Medium-Term Notes of the First Series may be served at the
office or agency of the Company in The City of New York. The Corporate
Trust Office of the Trustee will initially be the agency of the Company for
such payment, registration and registration of transfers and exchanges and
service of notices and demands and the Company hereby appoints the Trustee
as its agent for all such purposes; provided, however, that the Company
reserves the right to change, by one or more Officer's Certificates, any
such office or agency and such agent. The Trustee will initially be the
Security Registrar and the Paying Agent for the Medium-Term Notes of the
First Series;
6. The Medium-Term Notes of the First Series shall be redeemable as provided
in the Medium- Term Notes of the First Series, a form of which is hereto
attached as Exhibit A, and communicated by the Company to the Trustee by a
written order pursuant to Company Order No. __ of even date herewith;
7. [Extension of interest payment provisions, if any, will be inserted here];
8. The Medium-Term Notes of the First Series shall be initially issued in
global form registered in the name of Cede & Co. (as nominee for The
Depository Trust Company, New York, New York). The Medium-Term Notes of the
First Series in global form shall bear the depository legend in
substantially the form set forth in Exhibit A hereto, containing certain
restrictions on transfer;
9. No service charge will be made for the registration of transfer or exchange
of the Medium- Term Notes of the First Series; provided, however, that the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with the exchange or
transfer;
10. If the Company shall make any deposit of money and/or Eligible Obligations
with respect to any Medium-Term Notes of the First Series, or any portion
of the principal amount thereof, as contemplated by Section 701 of the
Indenture, the Company shall not deliver an Officer's Certificate described
in clause (z) in the first paragraph of said Section 701 unless the Company
shall also deliver to the Trustee, together with such Officer's
Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of the
Medium-Term Notes of the First Series, shall assume the obligation (which
shall be absolute and unconditional) to irrevocably deposit with the
Trustee or Paying Agent such additional sums of money, if any, or
additional Eligible Obligations (meeting the requirements of Section 701),
if any, or any combination thereof, at such time or times, as shall be
necessary, together with the money and/or Eligible Obligations theretofore
so deposited, to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Medium-Term Notes of the
First Series or portions thereof, all in accordance with and subject to the
provisions of said Section 701; provided, however, that such instrument may
state that the obligation of the Company to make additional deposits as
aforesaid shall be subject to the delivery to the Company by the Trustee of
a notice asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized standing, selected
by the Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a result of (i) the
receipt by the Company from, or the publication by, the Internal Revenue
Service of a ruling or (ii) a change in law occurring after the date of
this certificate, the Holders of such Medium-Term Notes of the First
Series, or portions of the principal amount thereof, will not recognize
income, gain or loss for United States federal income tax purposes as a
result of the satisfaction and discharge of the Company's indebtedness in
respect thereof and will be subject to United States federal income tax on
the same amounts, at the same times and in the same manner as if such
satisfaction and discharge had not been effected;
11. The Medium-Term Notes of the First Series shall have such other terms and
provisions as are provided in the form thereof set forth in Exhibit A
hereto, and shall be issued in substantially such form;
12. The undersigned has read all of the covenants and conditions contained in
the Indenture relating to the Company's issuance of the Medium-Term Notes
of the First Series and the definitions in the Indenture relating thereto,
the compliance with which this certificate addresses;
13. The statements contained in this certificate are based upon the familiarity
of the undersigned with the Indenture, the documents accompanying this
certificate, and upon discussions by the undersigned with officers and
employees of the Company familiar with the matters set forth herein;
14. In the opinion of the undersigned, he has made such examination or
investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenants and conditions have been complied with;
and
15. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any (including any covenants compliance with which
constitutes a condition precedent), to the authentication and delivery of
the Medium-Term Notes of the First Series requested in the accompanying
Company Order No. __ have been complied with.
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's Certificate this ____
day of _____, 199_.
----------------------
Treasurer
<PAGE>
EXHIBIT A
[depository legend]
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[FORM OF FACE OF MEDIUM-TERM NOTE]
NATIONAL FUEL GAS COMPANY
MEDIUM-TERM NOTE, SERIES A
NO.
ISSUE DATE: PRINCIPAL AMOUNT: CUSIP:
ORIGINAL INTEREST INTEREST RATE: MATURITY DATE:
ACCRUAL DATE:
INTEREST PAYMENT DATES:
REDEEMABLE AT OPTION OF THE COMPANY: YES___ NO ___
[Redemption provisions will be inserted here].
NATIONAL FUEL GAS COMPANY, a corporation duly organized and existing under
the laws of the State of New Jersey (herein referred to as the "Company", which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
or registered assigns, the principal sum of ____________________ Dollars on the
Maturity Date specified above, and to pay interest thereon at the Interest Rate
specified above, [semi-annually] on the Interest Payment Dates specified above
of each year and on the Maturity Date specified above, from the Original
Interest Accrual Date specified above or from the most recent Interest Payment
Date to which interest has been paid, commencing on the Interest Payment Date
next succeeding the Original Interest Accrual Date, until the Company's
obligation with respect to the payment of principal shall have been discharged,
provided, however, that if the date hereof is after a record date specified
- -------- -------
below with respect to any Interest Payment Date and prior to such Interest
Payment Date, then interest shall be payable only from such Interest Payment
Date (unless the Issue Date is after such record date and prior to the next
succeeding Interest Payment Date, in which case payment of interest shall
commence on the second Interest Payment Date succeeding the Issue Date), unless
the Company shall default in the payment of interest due on such Interest
Payment Date, in which case interest shall be payable from the next preceding
Interest Payment Date to which interest has been paid, or, if no interest has
been paid on this Security, from the Original Interest Accrual Date. In the
event that any Interest Payment Date is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of such
delay) with the same force and effect as if made on such Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be [the __th day of the calendar month next preceding such
Interest Payment Date]. [Subject to the extension of interest payment
provisions,] Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, the State of New York in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that, at the option of
the Company, interest on this Security may be paid by check mailed to the
address of the person entitled thereto, as such address shall appear on the
Security Register or by wire transfer to an account designated by the person
entitled thereto.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NATIONAL FUEL GAS COMPANY
By:_______________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:_______________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF MEDIUM-TERM NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture (For Unsecured Debt Securities), dated as of
_________, 1999 (herein, together with any amendments or supplements thereto,
called the "Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture, including the Board
Resolutions and Officer's Certificate filed with the Trustee on _______ __, 199_
creating the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of the Company in respect of this Security, or any portion of the
principal amount thereof, upon compliance with certain conditions set forth in
the Indenture, including the Officer's Certificate described above.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless (a) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, (b) the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee, (c) such Holder shall have offered the
Trustee reasonable indemnity, (d) the Trustee shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity, and (e) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of Securities of all series at the time
Outstanding in respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or [,subject to the extension
of interest payment provisions,] interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
[Extension of interest payment provisions, if any, will be inserted here].
The Securities of this series are issuable only in registered form without
coupons in denominations of $_____. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
transferable to a transferee or transferees, as designated by the Holder
surrendering the same for such registration of transfer, and exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
and of authorized denominations, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Exhibit 5(a)
THELEN REID & PRIEST LLP
Attorneys at Law
40 West 57th Street
New York, New York 10019-4097
Tel (212) 603-2000 Fax (212) 603-2001
www.thelenreid.com
July 22, 1999
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
Ladies and Gentlemen:
With reference to the Registration Statement ("Registration
Statement") on Form S-3 to be filed on or about the date hereof
with the Securities and Exchange Commission ("SEC") by National
Fuel Gas Company ("Company") under the Securities Act of 1933, as
amended ("1933 Act"), for the registration of the sale by the
Company from time to time of up to $625,000,000 aggregate
principal amount of (i) debt securities ("Debt Securities") and
(ii) common stock, $1.00 par value ("Stock"), together with the
common stock purchase rights ("Rights") appurtenant thereto. The
Debt Securities are to be issued pursuant to the terms of one or
more indentures (each, a "Debt Securities Indenture"). In
connection therewith, we have reviewed such documents and records
as we have deemed necessary to enable us to express an opinion on
the matters covered hereby.
Based on the foregoing, we are of the opinion that:
1. All action necessary to make any Debt Securities valid,
legal and binding obligations of the Company will have been taken
when:
a. An SEC order pursuant to the Public Utility Holding
Company Act of 1935, as amended ("1935 Act"), relating
to the issuance of the Debt Securities, shall be and
remain effective and the Company shall have complied
with the terms and conditions thereof;
<PAGE>
National Fuel Gas Company -2- July 22, 1999
b. The Board of Directors of the Company ("Company Board")
or a duly appointed and authorized committee thereof
("Authorized Board Committee") (i) shall have
authorized and approved (a) the issuance and sale of
the Debt Securities (including the terms and provisions
thereof) and (b) a Debt Securities Indenture (including
the terms and provisions thereof) pursuant to which the
Debt Securities are to be issued, and (ii) shall have
taken or, subject to specified guidelines, shall have
delegated to appropriate officers or representatives of
the Company the authority to take and, pursuant
thereto, such officers or representatives shall have
taken, all other necessary final action to consummate
the authorization of the issuance and sale of the Debt
Securities;
c. Such Debt Securities Indenture shall have been executed
and delivered by a duly authorized officer or
representative of the Company and by the trustee
thereunder;
d. The Debt Securities shall have been issued and
delivered in accordance with the terms and provisions
of such Debt Securities Indenture; and
e. The Debt Securities shall have been duly executed,
authenticated, issued and delivered for the
consideration contemplated.
2. All action necessary to make the Stock validly issued,
fully paid and non-assessable will have been taken provided that:
a. An SEC order pursuant to the 1935 Act, relating to the
issuance of the Stock, shall be and remain effective
and the Company shall have complied with the terms and
conditions thereof;
b. The Company Board or an Authorized Board Committee
shall have taken appropriate action (i) to authorize
and approve the issuance and sale of the Stock, (ii) to
fix or otherwise determine the consideration to be
received therefor, (iii) to authorize and approve the
form and substance of the documents to be used in
connection with the issuance and sale of such Stock
("Sale Documents"), and (iv) to take or, subject to
specified guidelines, to delegate to appropriate
officers or representatives of the Company the
authority to take and, pursuant thereto, such officers
or representatives shall have taken, all other final
action necessary to consummate the authorization of the
issuance and sale of such Stock;
c. The Sale Documents shall have been duly executed and
delivered by or on behalf of the parties thereto and
shall have become effective as therein provided; and
<PAGE>
National Fuel Gas Company -3- July 22, 1999
d. The Stock shall have been issued and delivered for the
consideration contemplated inthe RegistrationStatement.
3. The Rights, when issued as contemplated by the
Registration Statement and in accordance with the terms and
conditions of the Rights Agreement, dated June 12, 1996, between
the Company and Marine Midland Bank, as amended and restated by
the Amended and Restated Rights Agreement, dated April 30, 1999,
between the Company and HSBC Bank USA, will be validly issued.
The opinion set forth in paragraph 3 herein is subject to
the same limitations and qualifications contained in the opinion
of Stryker, Tams & Dill LLP referred to below.
We are members of the New York Bar and do not hold ourselves
out as experts on the laws of the State of New Jersey. The
opinions expressed herein are limited to the federal laws of the
United States of America. To the extent that such opinions
relate to or are dependent upon matters governed by New Jersey
law, we have relied upon an opinion of even date herewith of
Stryker, Tams & Dill LLP, New Jersey counsel for the Company,
which is being filed as an exhibit to the Registration Statement.
We hereby consent to the use of this opinion as an exhibit
to the Registration Statement and to the use of our name, as
counsel, therein. In giving the foregoing consent, we do not
thereby admit that we belong to the category of persons whose
consent is required under Section 7 of the 1933 Act, or the rules
and regulations promulgated thereunder.
Very truly yours,
/s/ THELEN REID & PRIEST LLP
THELEN REID & PRIEST LLP
-3-
STRYKER, Exhibit 5(b)
TAMS & DILL LLP
TWO PENN PLAZA EAST
NEWARK, NEW JERSEY 07105
(973) 491-9500
FAX (973) 491-9692
ONE WORLD TRADE CENTER
SUITE 7967
NEW YORK, NEW YORK 10048
(212) 432-9180
PLEASE REPLY TO: NEWARK
July 22, 1999
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
Ladies and Gentlemen:
This opinion relates to the Registration Statement ("Registration
Statement") on Form S-3 to be filed on or about the date hereof with the
Securities and Exchange Commission ("SEC") by National Fuel Gas Company
("Company") under the Securities Act of 1933, as amended ("1933 Act"), for the
registration of the sale by the Company from time to time of up to $625,000,000
aggregate principal amount of (I) debt securities ("Debt Securities") and (II)
common stock, $1.00 par value ("Stock"), together with the common stock purchase
rights ("Rights") appurtenant thereto. The Debt Securities are to be issued
pursuant to the terms of one or more indentures (each, a "Debt Securities
Indenture"). In connection therewith, we have reviewed such documents and
records as we have deemed necessary to enable us to express an opinion on the
matters covered hereby.
Based on the foregoing, we are of the opinion that:
1. Your Company is a corporation duly incorporated and validly existing
under the laws of the State of New Jersey.
2. All action necessary to make any Debt Securities valid, legal and
binding obligations of the Company will have been taken when:
A. An SEC order pursuant to the Public Utility Holding Company
Act of 1935, as amended ("1935 Act"), relating to the issuance of the Debt
Securities, shall be and remain effective and the Company shall have complied
with the terms and conditions thereof,
B. The Board of Directors of the Company (the "Company Board")
or a duly appointed and authorized committee thereof (an "Authorized Board
Committee") (I) shall have authorized and approved (A) the issuance and sale of
the Debt Securities (including the terms and provisions thereof) and (B) a Debt
Securities Indenture (including the terms and provisions thereof) pursuant to
which the Debt Securities are to be issued, and (II) shall have taken or,
subject to specified guidelines, shall have delegated to appropriate officers or
representatives of the Company the authority to take and, pursuant thereto, such
officers or representatives shall have taken, all other necessary final action
to consummate the authorization of the issuance and sale of the Debt Securities;
C. Such Debt Securities Indenture shall have been executed and
delivered by a duly authorized officer or representative of the Company and by
the trustee thereunder;
D. The Debt Securities shall have been issued and delivered in
accordance with the terms and provisions of such Debt Securities Indenture; and
E. The Debt Securities shall have been duly executed,
authenticated, issued and delivered for the consideration contemplated.
3. All action necessary to make the Stock validly issued, fully paid
and non-assessable will have been taken provided that:
A. An SEC order pursuant to the 1935 Act, relating to the
issuance and sale of the Stock, shall be and remain effective and the Company
shall have complied with the terms and conditions thereof;
B. The Company Board or an Authorized Board Committee shall
have taken appropriate action (I) to authorize and approve the issuance and sale
of the Stock, (II) to fix or otherwise determine the consideration to be
received therefor, (III) to authorize and approve the form and substance of the
documents to be used in connection with the issuance and sale of such Stock (the
"Sale Documents"), and (IV) to take or, subject to specified guidelines, to
delegate to appropriate officers or representatives of the Company the authority
to take and, pursuant thereto, such officers or representatives shall have
taken, all other final action necessary to consummate the authorization of the
issuance and sale of such Stock;
C. The Sale Documents shall have been duly executed and
delivered by or on behalf of the parties thereto and shall have become effective
as therein provided; and
D. The Stock shall have been issued and delivered for the
consideration contemplated in the Registration Statement.
4. The Rights, when issued as contemplated in the Registration
Statement and in accordance with the terms and conditions of the Rights
Agreement (as hereinbelow defined), will be validly issued.
The opinion set forth in paragraph 4 is limited to the valid issuance
of the Rights under the corporation laws of the State of New Jersey. In this
connection, we have not been asked to express and, accordingly, do not express,
any opinion herein with respect to any other aspect of the Rights, the effect of
equitable principles or fiduciary considerations relating to the adoption of the
Rights Agreement, dated June 12, 1996, between the Company and Marine Midland
Bank, as amended and restated by the Amended and Restated Rights Agreement,
dated April 30, 1999, between the Company and HSBC Bank USA (as amended and
restated, the "Rights Agreement") or the issuance of the Rights, or the
enforceability of any particular provisions of the Rights Agreement.
We are members of the New Jersey Bar and do not hold ourselves out as
experts on the laws of any other jurisdiction. As to all matters of New York
law, we have relied upon an opinion of even date herewith of Thelen Reid &
Priest LLP, New York counsel for the Company, which is being filed as an exhibit
to the Registration Statement. As to all matters of New Jersey law, Thelen Reid
& Priest LLP is hereby authorized to rely upon this opinion to the same extent
as if this opinion had been addressed to them.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name, as counsel, therein. In
giving the foregoing consent, we do not thereby admit that we belong to the
category of persons whose consent is required under Section 7 of the 1933 Act,
or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ STRYKER, TAMS & DILL LLP
STRYKER, TAMS & DILL LLP
CHF:lr
EXHIBIT 23(a)
-------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated October
27, 1998 relating to the financial statements and financial
statement schedule, which appears in National Fuel Gas Company's
Annual Report on Form 10-K for the year ended September 30, 1998.
We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Buffalo, New York
July 22, 1999
EXHIBIT 23(c)
-------------
RALPH E. DAVIS ASSOCIATES, INC.
Consultants-Petroleum and Natural Gas
3555 Timmons Lane-Suite 1105
Houston, Texas 77027
(713) 622-8955
CONSENT OF ENGINEER
-------------------
We hereby consent to the incorporation by reference in
the each of the prospectuses constituting part of this
Registration Statement on Form S-3 of National Fuel Gas Company
of our audit report dated October 19, 1998 and our estimate dated
October 1, 1998, which appear in and are incorporated by
reference in National Fuel Gas Company's Annual Report on Form
10-K for the year ended September 30, 1998. We also consent to
the reference to us under the heading "Experts" in each of such
prospectuses.
RALPH E. DAVIS ASSOCIATES, INC.
/s/ Allen C. Barron
-------------------------------
Allen C. Barron, P.E.
Vice President
Houston, Texas
July 21, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
NATIONAL FUEL GAS COMPANY
(Exact name of obligor as specified in its charter)
New Jersey 13-1086010
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10 Lafayette Square
Buffalo, New York 14203
(Address of principal executive offices) (Zip code)
-----------------
DEBT SECURITIES*
(Title of the securities)
- ---------------
*Specific title(s) to be determined in connection with sale(s) of Debt
Securities.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W., Washington, D.C.
New York Clearing House Association 20429
New York, N.Y. 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
ss.229.10(d).
1. - A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- ---------------
*Pursuant to General Instruction B, the Trustee has responded only to Items 1,
2 and 16 of this form since to the best of the knowledge of the Trustee the
obligor is not in default under any indenture under which the Trustee is a
trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 6th day of July, 1999.
THE BANK OF NEW YORK
By: /s/ Iliana Arciprete
----------------------------------
Iliana Arciprete
Assistant Treasurer
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin . . . . . . . . . . . . . $ 4,508,742
Interest-bearing balances . . . . . . . . . . . . 4,425,071
Securities:
Held-to-maturity securities . . . . . . . . . . . 836,304
Available-for-sale securities . . . . . . . . . . 4,047,851
Federal funds sold and Securities
purchased under agreements to resell . . . . . 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income . . . . . . . . . . . . . . . 39,349,679
LESS: Allowance for loan and
lease losses . . . . . . . . . . . . 603,025
LESS: Allocated transfer risk
reserve . . . . . . . . . . . . . . . 15,906
Loans and leases, net of unearned
income, allowance, and reserve . . . . . . . . 38,730,748
Trading Assets . . . . . . . . . . . . . . . . . . 1,571,372
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . . . 685,674
Other real estate owned . . . . . . . . . . . . . . 10,331
Investments in unconsolidated subsid-
iaries and associated companies . . . . . . . . . 182,449
Customers' liability to this bank on
acceptances outstanding . . . . . . . . . . . . . 1,184,822
Intangible assets . . . . . . . . . . . . . . . . . 1,129,636
Other assets . . . . . . . . . . . . . . . . . . . 2,632,309
---------
Total assets . . . . . . . . . . . . . . . . . . . $61,688,578
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<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices . . . . . . . . . . . . . . . $25,731,036
Noninterest-bearing . . . . . . . . . 10,252,589
Interest-bearing . . . . . . . . . 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs . . . . . . . . 18,756,302
Noninterest-bearing . . . . . . . . 111,386
Interest-bearing . . . . . . . . . . 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase . . . . . . . 3,276,362
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . 230,671
Trading liabilities . . . . . . . . . . . . . . . . 1,554,493
Other borrowed money:
With remaining maturity of one year or less . . . 1,154,502
With remaining maturity of more than
one year through three years . . . . . . . . . 465
With remaining maturity of more than
three years . . . . . . . . . . . . . . . . . 31,080
Bank's liability on acceptances
executed and outstanding . . . . . . . . . . . . 1,185,364
Subordinated notes and debentures . . . . . . . . . 1,308,000
Other liabilities . . . . . . . . . . . . . . . . . 2,743,590
-----------
Total liabilities . . . . . . . . . . . . . . . . . 55,971,865
-----------
EQUITY CAPITAL
- --------------
Common stock . . . . . . . . . . . . . . . . . . . 1,135,284
Surplus . . . . . . . . . . . . . . . . . . . 764,443
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . 44,106
Cumulative foreign currency
translation adjustments . . . . . . . . . . . . . (34,817)
-----------
Total equity capital . . . . . . . . . . . . . . . 5,716,713
-----------
Total liabilities and equity capital . . . . . . . $61,688,578
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<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
