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As filed with the Securities and Exchange Commission on December 28, 1999
Registration No. 333-_________
================================================================================
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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ATMOS ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Texas and Virginia 75-1743247
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Phillip L. Allbritten
1800 Three Lincoln Centre 1800 Three Lincoln Centre
5430 LBJ Freeway 5430 LBJ Freeway
Dallas, Texas 75240 Dallas, Texas 75240
(972) 934-9227 (972) 934-9227
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area code, and telephone number, including
of registrant's principal executive offices) area code, of agent of service)
The Commission is requested to mail copies of all orders, notices and
communications to:
Irwin F. Sentilles, III Jonathan Jewett
Gibson, Dunn & Crutcher LLP Shearman & Sterling
1717 Main Street, Suite 5400 599 Lexington Avenue
Dallas, Texas 75201 New York, New York 10022
(214) 698-3100
Approximate date of commencement of proposed sale to public:
From time to time after this registration statement becomes effective.
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<PAGE>
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
Title of each class of Proposed maximum Amount of
securities to be registered aggregate offering price (1) registration fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities and Common Stock
(no par value per share)(2) $500,000,000 $132,000.00
- ------------------------------------------------------------------------------------------------
</TABLE>
(1) Exclusive of accrued interest and dividends, if any, and estimated
solely for the purpose of calculating the registration fee pursuant to Rule
457(o) under the Securities Act.
(2) Includes, with respect to each share of Common Stock, Rights pursuant
to the registrant's Rights Agreement, dated as of November 12, 1997, as amended,
between the registrant and BankBoston, N.A., as Rights Agent, and until a
triggering event thereunder, the Rights trade with, and cannot be separated
from, the Common Stock.
------------------
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 this registration statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and 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 December 28, 1999
PROSPECTUS
Atmos Energy Corporation
By this prospectus, we offer up to
$500,000,000
of debt securities and common stock
-----------------
We will provide specific terms of these securities in supplements to this
prospectus. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement. You should read this prospectus and the
prospectus supplement carefully before you invest.
-----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus is dated _____________ _____, 2000
<PAGE>
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, that
contained in this prospectus or in any of the materials that we have
incorporated by reference into this document. Therefore, if anyone does give
you information of this sort, you should not rely on it. If you are in a
jurisdiction where offers to sell, or solicitations of offers to purchase, the
securities offered by this document are unlawful, or if you are a person to whom
it is unlawful to direct these types of activities, then the offer presented in
this document does not extend to you. The information contained in this
document speaks only as of the date of this document, unless the information
specifically indicates that another date applies.
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
FORWARD-LOOKING STATEMENTS............................................ 3
ATMOS ENERGY CORPORATION.............................................. 4
USE OF PROCEEDS....................................................... 5
RATIO OF EARNINGS TO FIXED CHARGES.................................... 5
SECURITIES WE MAY ISSUE............................................... 5
PROSPECTUS SUPPLEMENTS................................................ 5
DESCRIPTION OF DEBT SECURITIES........................................ 8
DESCRIPTION OF COMMON STOCK........................................... 27
PLAN OF DISTRIBUTION.................................................. 29
LEGAL MATTERS......................................................... 30
EXPERTS............................................................... 30
WHERE YOU CAN FIND MORE INFORMATION................................... 31
</TABLE>
______________________________________________________________________________
The terms "we", "our", and "us" refer to Atmos Energy Corporation unless
the context suggests otherwise. The term "you" refers to a prospective investor.
______________________________________________________________________________
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FORWARD-LOOKING STATEMENTS
Statements contained in this prospectus, including the documents that are
incorporated by reference as set forth in "Incorporation of Certain Documents by
Reference," that are not historical facts are "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933. Forward-looking
statements are based on management's beliefs as well as assumptions made by, and
information currently available to, management. Because such statements are
based on expectations as to future economic performance and are not statements
of fact, actual results may differ materially from those projected. Important
factors that could cause future results to differ include, but are not limited
to:
. national, regional and local economic and competitive conditions,
. regulatory and business trends and decisions,
. technological developments,
. Year 2000 issues,
. inflation rates,
. weather conditions, and
. other factors discussed in this and our other filings with the
Commission.
All of these factors are difficult to predict and many are beyond our control.
Accordingly, while we believe these forward-looking statements to be reasonable,
there can be no assurance that they will approximate actual experience or that
the expectations derived from them will be realized. When used in our documents
or oral presentations, the words "anticipate," "believe," "estimate," "expect,"
"objective," "projection," "forecast," "goal" or similar words are intended to
identify forward-looking statements.
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ATMOS ENERGY CORPORATION
Operations
We distribute and sell natural gas and propane to over one million
residential, commercial, industrial, agricultural and other customers. We
distribute and sell natural gas through our five operating divisions to
approximately 1,038,000 gas meters in over 800 cities, towns and communities in
service areas located in Colorado, Georgia, Illinois, Iowa, Kansas, Kentucky,
Louisiana, Missouri, South Carolina, Tennessee, Texas and Virginia. We also
transport natural gas for others through our distribution system. We also
distribute and sell propane to approximately 40,000 customers in Kentucky, North
Carolina, Tennessee and Virginia.
In our non-utililty businesses we provide natural gas storage services
through our wholly owned subsidiary Atmos Storage, Inc., which owns natural gas
storage fields in Kentucky and Kansas to supplement natural gas used by
customers in Kansas, Tennessee, and other states. Through our subsidiary, Atmos
Energy Marketing, LLC, we also own a 45% interest in Woodward Marketing, L.L.C.,
a privately held company that provides gas marketing and energy management
services to industrial customers, municipalities and local distribution
companies, including our Trans Louisiana Gas Company, Western Kentucky Gas
Company and United Cities Gas Company divisions. In addition, we market gas to
industrial and irrigation customers primarily in West Texas through Enermart
Energy Services Trust and to industrial customers in Louisiana. We also lease
appliances to residential customers.
Through United Cities Propane Gas, Inc., we distribute propane in the
retail market and, to a much lesser extent, in the wholesale market. We exited
the direct merchandising and repair of propane gas appliances in 1999. We
currently have propane operation and storage centers and storefront offices in
Tennessee, Kentucky, and North Carolina, with a total company storage capacity
of approximately 2.5 million gallons, which serve customers in those states as
well as Virginia.
Formation
We were organized under the laws of the State of Texas in 1983 as a
subsidiary of Pioneer Corporation for the purposes of owning and operating
Pioneer's natural gas distribution business in Texas. Immediately following the
transfer of the gas distribution business, which Pioneer and its predecessors
operated since 1906, Pioneer distributed the outstanding stock of the
corporation, then known as Energas Company, to its shareholders. In September
1988, we changed our name from Energas Company to Atmos Energy Corporation. As a
result of our merger with United Cities Gas Company in July 1997, we became
incorporated in the Commonwealth of Virginia as well as the State of Texas.
Location of Executive Offices
Our address is 1800 Three Lincoln Centre, 5430 LBJ Freeway, Dallas, Texas
75240, and our telephone number is (972) 934-9227.
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USE OF PROCEEDS
Except as may be stated in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities for general
corporate purposes, including acquisitions, in our business and related
businesses, and the repayment of indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the periods indicated:
Year ended September 30,
--------------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
Ratio.......... 1.53 2.94 1.95 2.82 2.31
---- ---- ---- ---- ----
For purposes of computing the ratio of earnings to fixed charges, earnings
consists of the sum of our pretax income from continuing operations and fixed
charges. Fixed charges consist of interest expense, amortization of debt
discount, premium and expense, capitalized interest, and a portion of lease
payments considered to represent an interest factor.
SECURITIES WE MAY ISSUE
We may use this prospectus to offer up to $500,000,000 of:
. our debt securities, and
. our common stock.
PROSPECTUS SUPPLEMENTS
This prospectus provides you with a general description of the debt
securities and common stock we may offer. Each time we offer securities, we
will provide a prospectus supplement that will contain specific information
about the terms of the offering. The prospectus supplement may also add to or
change information contained in this prospectus. If so, the prospectus
supplement should be read as superseding this prospectus. You should read both
this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
The prospectus supplement to be attached to the front of this prospectus
will describe the terms of any debt securities that we offer, the terms of any
common shares that we offer and any initial public offering price, the purchase
price and net proceeds that we will receive and the other specific terms related
to the offering of the securities.
For more details on the terms of the securities, you should read the
exhibits filed with our registration statement.
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DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time in one or more distinct
series. This section summarizes the material terms of the debt securities that
we anticipate will be common to all series. Most of the financial and other
terms of any series of debt securities that we offer and any differences from
the common terms will be described in the prospectus supplement to be attached
to the front of this prospectus. As used in this section, "we", "us" and "our"
refer to Atmos Energy Corporation and not to its subsidiaries, unless the
context otherwise requires.
As required by U.S. federal law for all bonds and notes of companies that
are publicly offered, a document called an "indenture" will govern any debt
securities that we issue. An indenture is a contract between us and a financial
institution acting as trustee on your behalf. We anticipate entering into an
indenture with SunTrust Bank, Atlanta, which will act as trustee. The indenture
will be subject to the Trust Indenture Act of 1939. The trustee has the
following two main roles:
. the trustee can enforce your rights against us if we default.
There are some limitations on the extent to which the trustee
acts on your behalf, described later in this prospectus.
. the trustee will perform certain administrative duties for us,
which include sending you interest payments and notices.
Because this section is a summary of the material terms of the form of
indenture, it does not describe every aspect of the debt securities. We urge you
to read the indenture because it, and not this description, will define your
rights as a holder of debt securities. For example, in this section, we use
capitalized words to signify terms that are specifically defined in the form of
indenture. Some of the definitions are repeated in this prospectus, but for the
rest you will need to read the indenture. We have filed or will file the form of
indenture, the final indenture and any supplements to it as exhibits to the
registration statement that we have filed with the SEC. See "Where You Can Find
More Information," for information on how to obtain copies of the indenture and
any supplements. References to the "indenture" in this prospectus mean the form
of indenture we have filed as an exhibit to the registration statement relating
to this offering that we have filed with the SEC.
General
The debt securities will be our unsecured obligations and will rank equally
with all of our other unsecured and unsubordinated Indebtedness.
You should read the prospectus supplement for the following terms of the
series of debt securities offered by the prospectus supplement. Our board of
directors will establish the following terms before issuance of the series:
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. the title of the debt securities,
. the aggregate principal amount of the debt securities, the
percentage of their principal amount at which the debt securities
will be issued and the date or dates when the principal of the
debt securities will be payable or how those dates will be
determined,
. the interest rate or rates, which may be fixed or variable, that
the debt securities will bear, if any, and how the rate or rates
will be determined,
. the date or dates from which any interest will accrue or how the
date or dates will be determined, the date or dates on which any
interest will be payable, any regular record dates for these
payments or how these dates will be determined and the basis on
which any interest will be calculated, if other than on the basis
of a 360-day year of twelve 30-day months,
. the place or places, if any, other than or in addition to New
York City, of payment, transfer or exchange of the debt
securities and where notices or demands to or upon us in respect
of the debt securities may be served,
. any optional redemption provisions,
. any sinking fund or other provisions that would obligate us to
repurchase or redeem the debt securities,
. whether the amount of payments of principal of, any premium on,
or interest on the debt securities will be determined with
reference to an index, formula or other method, which could be
based on one or more commodities, equity indices or other
indices, and how these amounts will be determined,
. any changes or additions to the events of default or our
covenants with respect to the debt securities,
. if not the principal amount of the debt securities, the portion
of the principal amount that will be payable upon acceleration of
the maturity of the debt securities or how that portion will be
determined,
. any changes or additions to the provisions concerning defeasance
and covenant defeasance contained in the indenture that will be
applicable to the debt securities,
. any provisions granting special rights to the holders of the debt
securities upon the occurrence of specified events,
. if other than the trustee, the name of the paying agent, security
registrar or transfer agent for the debt securities,
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. if we do not issue the debt securities in book-entry form only to
be held by The Depository Trust Company, as depositary, whether
we will issue the debt securities in global form or fully
registered form and the identity of any alternative depositary,
. the person to whom any interest in a debt security will be
payable, if other than the registered holder at the close of
business on the regular record date,
. the denomination or denominations in which we will issue the
debt securities will be issued, if other than denominations of
$1,000 or any integral multiples,
. any provisions requiring us to pay Additional Amounts on the debt
securities to any holder who is not a United States person in
respect of any tax, assessment or governmental charge and, if so,
whether we will have the option to redeem the debt securities
rather than pay the Additional Amounts,
. any other material terms of the debt securities or the indenture,
which may not be consistent with the terms set forth in this
prospectus.
For purposes of this prospectus, any reference to the payment of principal
of, any premium on, or interest on the debt securities will include additional
amounts if required by the terms of the debt securities.
The indenture will not limit the amount of debt securities that we are
authorized to issue from time to time. The indenture will also provide that
there may be more than one trustee thereunder, each for one or more series of
debt securities. If a trustee is acting under the indenture with respect to more
than one series of debt securities, the debt securities for which it is acting
would be treated as if issued under separate indentures. If there is more than
one trustee under the indenture, the powers and trust obligations of each
trustee will apply only to the debt securities of the separate series for which
it is trustee.
We may issue debt securities with terms different from those of debt
securities already issued. Without the consent of the holders of the
outstanding debt securities, we may reopen a previous issue of a series of debt
securities and issue additional debt securities of that series unless the
reopening was restricted when we created that series.
There is no requirement that we issue debt securities in the future under
the indenture, and we may use other indentures or documentation, containing
different provisions in connection with future issues of other debt securities.
We may issue the debt securities as "Original Issue Discount Securities",
which are debt securities, including any zero-coupon debt securities, that are
issued and sold at a discount from their stated principal amount. Original
Issue Discount Securities provide that, upon acceleration of their maturity, an
amount less than their principal amount will become due and payable. We
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will describe the U.S. federal income tax consequences and other considerations
applicable to original issue discount securities in any prospectus supplement
relating to them.
Holders of Debt Securities
Book-Entry Holders. We will issue debt securities in book-entry form only,
unless we specify otherwise in the applicable prospectus supplement. This means
debt securities will be represented by one or more global securities registered
in the name of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the depositary's book-entry
system. These participating institutions, in turn, hold beneficial interests in
the debt securities on behalf of themselves or their customers.
Under the indenture, we will recognize as a holder only the person in whose
name a debt security is registered. Consequently, for debt securities issued in
global form, we will recognize only the depositary as the holder of the debt
securities and we will make all payments on the debt securities to the
depositary. The depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their customers who are
the beneficial owners.
The depositary and its participants do so under agreements they have made
with one another or with their customers; they are not obligated to do so under
the terms of the debt securities.
As a result, you will not own debt securities directly. Instead, you will
own beneficial interests in a global security, through a bank, broker or other
financial institution that participates in the depositary's book-entry system or
holds an interest through a participant. As long as the debt securities are
issued in global form, you will be an indirect holder, and not a holder, of the
debt securities.
Street Name Holders. In the future we may terminate a global security or
issue debt securities initially in non-global form. In these cases, you may
choose to hold your debt securities in your own name or in "street name." Debt
securities held in street name would be registered in the name of a bank, broker
or other financial institution that you choose, and you would hold only a
beneficial interest in those debt securities through an account you maintain at
that institution.
For debt securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in whose names the
debt securities are registered as the holders of those debt securities, and we
will make all payments on those debt securities to them. These institutions
pass along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. If you hold debt securities in
street name you will be an indirect holder, and not a holder, of those debt
securities.
Legal Holders. Our obligations, as well as the obligations of the trustee
and those of any third parties employed by us or the trustee, run only to the
legal holders of the debt securities.
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We do not have obligations to you if you hold beneficial interests in global
securities, in street name or by any other indirect means. This will be the case
whether you choose to be an indirect holder of a debt security or have no choice
because we are issuing the debt securities only in global form.
For example, once we make a payment or give a notice to the holder, we have
no further responsibility for the payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose (for example, to
amend the indenture or to relieve us of the consequences of a default or of our
obligation to comply with a particular provision of the indenture) we would seek
the approval only from the holders, and not the indirect holders, of the debt
securities. Whether and how the holders contact the indirect holders is up to
the holders.
When we refer to you, we mean those who invest in the debt securities being
offered by this prospectus, whether they are the holders or only indirect
holders of those debt securities. When we refer to your debt securities, we
mean the debt securities in which you hold a direct or indirect interest.
Special Considerations for Indirect Holders. If you hold debt securities
through a bank, broker or other financial institution, either in book-entry form
or in street name, you should check with your own institution to find out:
. how it handles securities payments and notices,
. whether it imposes fees or charges,
. how it would handle a request for the holders' consent, if ever
required,
. whether and how you can instruct it to send you debt securities
registered in your own name so you can be a holder, if that is
permitted in the future,
. how it would exercise rights under the debt securities if there
were a default or other event triggering the need for holders to
act to protect their interests, and
. if the debt securities are in book-entry form, how the
depositary's rules and procedures will affect these matters.
Global Securities
What is a Global Security? We will issue each debt security under the
indenture in book-entry form only, unless we specify otherwise in the applicable
prospectus supplement. A global security represents one or any other number of
individual debt securities. Generally, all debt securities represented by the
same global securities will have the same terms. We may, however, issue a global
security that represents multiple debt securities that have different terms and
are issued at different times. We call this kind of global security a master
global security.
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Each debt security issued in book-entry form will be represented by a
global security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we
select for this purpose is called the depositary. Unless we specify otherwise
in the applicable prospectus supplement, The Depository Trust Company, New York,
New York, known as DTC, will be the depositary for all debt securities issued in
book-entry form.
A global security may not be transferred to or registered in the name of
anyone other than the depositary or its nominee, unless special termination
situations arise. We describe those situations below under "Special Situations
When a Global Security Will Be Terminated." As a result of these arrangements,
the depositary, or its nominee, will be the sole registered owner and holder of
all debt securities represented by a global security, and investors will be
permitted to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the depositary or with
another institution that does. Thus, if your security is represented by a
global security, you will not be a holder of the debt security, but only an
indirect holder of a beneficial interest in the global security.
Special Considerations for Global Securities. As an indirect holder, your
rights relating to a global security will be governed by the account rules of
your financial institution and of the depositary, as well as general laws
relating to securities transfers. We do not recognize an indirect holder as a
holder of debt securities and instead deal only with the depositary that holds
the global security.
If we issue debt securities only in the form of a global security, you
should be aware of the following:
. you cannot cause the debt securities to be registered in your
name, and cannot obtain non-global certificates for your interest
in the debt securities, except in the special situations that we
describe below,
. you will be an indirect holder and must look to your own bank or
broker for payments on the debt securities and protection of your
legal rights relating to the debt securities, as we describe
under "Holders of Debt Securities" above,
. you may not be able to sell interests in the debt securities to
some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry form,
. you may not be able to pledge your interest in a global security
in circumstances where certificates representing the debt
securities must be delivered to the lender or other beneficiary
of the pledge in order for the pledge to be effective,
. the depositary's policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to your interest in a global security. We and the
trustee have no responsibility for any aspect of the
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depositary's actions or for its records of ownership interests in
a global security. We and the trustee also do not supervise the
depositary in any way,
. DTC requires that those who purchase and sell interests in a
global security within its book-entry system use immediately
available funds and your broker or bank may require you to do so
as well, and
. financial institutions that participate in the depositary's book-
entry system, and through which you hold your interest in a
global security, may also have their own policies affecting
payments, notices and other matters relating to the debt
security. Your chain of ownership may contain more than one
financial intermediary. We do not monitor and are not responsible
for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated. In a few
special situations described below, a global security will be terminated and
interests in it will be exchanged for certificates in non-global form
representing the debt securities it represented. After that exchange, the choice
of whether to hold the debt securities directly or in street name will be up to
you. You must consult your own bank or broker to find out how to have your
interests in a global security transferred on termination to your own name, so
that you will be a holder. We have described the rights of holders and street
name investors above under "Holders of Debt Securities."
The special situations for termination of a global security are as follows:
. if the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global
security and we do not appoint another institution to act as
depositary within 60 days,
. if we notify the trustee that we wish to terminate that global
security, or
. if an event of default has occurred with regard to debt
securities represented by that global security and has not been
cured or waived; we discuss defaults later under "Events of
Default."
If a global security is terminated, only the depositary, and not we or the
trustee, is responsible for deciding the names of the institutions in whose
names the debt securities represented by the global security will be registered
and, therefore, who will be the holders of those debt securities.
Covenants
Limitations on Liens. We will covenant in the indenture that we will not,
and will not permit any of our Restricted Subsidiaries to, create, incur, issue
or assume any Indebtedness secured by any Lien on any Principal Property, or on
shares of stock or Indebtedness of any Restricted Subsidiary, known as
Restricted Securities, without making effective provision for the
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outstanding debt securities, other than any outstanding debt securities not
entitled to this covenant, to be secured by the Lien equally and ratably with,
or prior to, the Indebtedness and obligations secured or to be secured thereby
for so long as the Indebtedness or obligations are so secured, except that the
foregoing restriction will not apply to:
. any Lien existing on the date of the first issuance of debt
securities under the indenture, including the Liens on property
or after-acquired property of ours or our Subsidiaries under the
Greeley Indenture or the United Cities Indenture, or such other
date as may be specified in a prospectus supplement for an
applicable series of debt securities,
. any Lien on any Principal Property or Restricted Securities of
any person existing at the time that person is merged or
consolidated with or into us or a Restricted Subsidiary, or this
person becomes a Restricted Subsidiary, or arising thereafter
otherwise than in connection with the borrowing of money arranged
thereafter and pursuant to contractual commitments entered into
prior to and not in contemplation of the person's becoming a
Restricted Subsidiary,
. any Lien on any Principal Property existing at the time we or a
Restricted Subsidiary acquire the Principal Property, whether or
not the Lien is assumed by us or the Restricted Subsidiary,
provided that this Lien may not extend to any other Principal
Property of ours or any Restricted Subsidiary,
. any Lien on any Principal Property, including any improvements on
an existing Principal Property, of ours or any Restricted
Subsidiary, and any Lien on the shares of stock of a Restricted
Subsidiary that was formed or is held for the purpose of
acquiring and holding the Principal Property, in each case to
secure all or any part of the cost of acquisition, development,
operation, construction, alteration, repair or improvement of all
or any part of the Principal Property, or to secure Indebtedness
incurred by us or a Restricted Subsidiary for the purpose of
financing all or any part of that cost, provided that the Lien is
created prior to, at the time of, or within 12 months after the
latest of, the acquisition, completion of construction or
improvement or commencement of commercial operation of that
Principal Property and, provided further, that the Lien may not
extend to any other Principal Property of ours or any Restricted
Subsidiary, other than any currently unimproved real property on
which the Principal Property has been constructed or developed or
the improvement is located,
. any Lien on any Principal Property or Restricted Securities to
secure Indebtedness owed to us or to a Restricted Subsidiary,
. any Lien in favor of a governmental body to secure advances or
other payments under any contract or statute or to secure
Indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to the Lien,
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. any Lien created in connection with a project financed with, and
created to secure, Non-Recourse Indebtedness,
. any Lien required to be placed on any of our property or any of
the property of our Subsidiaries under the provisions of the
Greeley Indenture, the United Cities Indenture, the Note Purchase
Agreements, or the 6 3/4% Indenture,
. any extension, renewal, substitution or replacement, or
successive extensions, renewals, substitutions or replacements,
in whole or in part, of any Lien referred to in any of the
bullet points above, provided that the Indebtedness secured may
not exceed the principal amount of Indebtedness that is secured
at the time of the renewal or refunding, and that the renewal or
refunding Lien must be limited to all or any part of the same
property and improvements, shares of stock or Indebtedness that
secured the Lien that was renewed or refunded, or
. any Lien not permitted above securing Indebtedness that, together
with the aggregate outstanding principal amount of other secured
Indebtedness that would otherwise be subject to the above
restrictions, excluding Indebtedness secured by Liens permitted
under the above exceptions, and the Attributable Debt in respect
of all Sale and Leaseback Transactions, not including
Attributable Debt in respect of any Sale and Leaseback
Transactions described in the last two bullet points in the next
succeeding paragraph, would not then exceed 20% of our
Consolidated Net Tangible Assets.
Limitation on Sale and Leaseback Transactions. We will covenant in the
indenture that we will not, and will not permit any Restricted Subsidiary to,
enter into any Sale and Leaseback Transaction unless
. we or a Restricted Subsidiary would be entitled, without securing
the Outstanding Securities, to incur Indebtedness secured by a
Lien on the Principal Property that is the subject of the Sale
and Leaseback Transaction,
. the Attributable Debt associated with the Sale and Leaseback
Transaction would be in an amount permitted under the last bullet
point of the preceding paragraph,
. the proceeds received in respect of the Principal Property so
sold and leased back at the time of entering into the Sale and
Leaseback Transaction are used for our business and operations or
the business and operations of any Subsidiary, or
. within 12 months after the sale or transfer, an amount equal to
the proceeds received in respect of the Principal Property sold
and leased back at the time of entering into the Sale and
Leaseback Transaction is applied to the prepayment, other than
mandatory prepayment, of any Outstanding Securities or any Funded
Indebtedness owed by us or a Restricted Subsidiary, other than
Funded Indebtedness that is held by us or any Restricted
Subsidiary or our Funded
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Indebtedness that is subordinate in right of payment to any
Outstanding Securities.
Definitions. Following are definitions of some of the terms used in the
covenants described above.
"Attributable Debt" means, as to any lease under which a person is at the
time liable for rent, at a date that liability is to be determined, the total
net amount of rent required to be paid by that person under the lease during the
remaining term, excluding amounts required to be paid on account of maintenance
and repairs, services, insurance, taxes, assessments, water rates and similar
charges and contingent rents, discounted from the respective due dates thereof
at the weighted average of the rates of interest, or Yield to Maturity, in the
case of Original Issue Discount Securities, borne by the then Oustanding
Securities, compounded annually.
"Capital Stock" means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests, however
designated, in stock issued by a corporation.
"Consolidated Net Tangible Assets" means the aggregate amount of assets,
less applicable reserves and other properly deductible items, after deducting
. all current liabilities, excluding any portion thereof constituting
Funded Indebtedness, and
. all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles,
all as set forth on our most recent consolidated balance sheet contained in our
latest quarterly or annual report filed with the SEC under the Securities
Exchange Act of 1934 and computed in accordance with generally accepted
accounting principles.
"Funded Indebtedness" means, as applied to any person, all Indebtedness of
the person maturing after, or renewable or extendible at the option of the
person beyond, 12 months from the date of determination.
"Greeley Indenture" means the Indenture of Mortgage and Deed of Trust,
dated as of March 1, 1957, from Greeley Gas Company to U.S. Bank National
Association, formerly The Central Bank and Trust Company, as Trustee, as amended
and supplemented through December 1, 1993, the Indenture of Mortgage and Deed of
Trust through the Tenth Supplemental Indenture by Atmos to U.S. Bank National
Association, formerly The Central Bank and Trust Company, as Trustee, as
amended, supplemented or otherwise modified from time to time.
"Indebtedness" means obligations for money borrowed, evidenced by notes,
bonds, debentures or other similar evidences of indebtedness.
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"Lien" means any lien, mortgage, pledge, encumbrance, charge or security
interest securing Indebtedness; provided, however, that the following types of
transactions will not be considered, for purposes of this definition, to result
in a Lien:
. any acquisition by us or any Restricted Subsidiary of any
property or assets subject to any reservation or exception under
the terms of which any vendor, lessor or assignor creates,
reserves or excepts or has created, reserved or excepted an
interest in oil, gas or any other mineral in place or the
proceeds of that interest,
. any conveyance or assignment whereby we or any Restricted
Subsidiary conveys or assigns to any person or persons an
interest in oil, gas or any other mineral in place or the
proceeds of that interest,
. any Lien upon any property or assets either owned or leased by us
or a Restricted Subsidiary or in which we or any Restricted
Subsidiary owns an interest that secures for the benefit of the
person or persons paying the expenses of developing or conducting
operations for the recovery, storage, transportation or sale of
the mineral resources of the property or assets, or property or
assets with which it is unitized, the payment to the person or
persons of our proportionate part or the Restricted Subsidiary's
proportionate part of the development or operating expenses,
. any hedging arrangements entered into in the ordinary course of
business, including any obligation to deliver any mineral,
commodity or asset, or
. any guarantees that we make for the repayment of Indebtedness of
any Subsidiary or guarantees by any Subsidiary of the repayment
of Indebtedness of any entity, including Indebtedness of Woodward
Marketing, L.L.C.
"Non-Recourse Indebtedness" means, at any time, Indebtedness incurred after
the date of the indenture by us or a Restricted Subsidiary in connection with
the acquisition of property or assets by us or a Restricted Subsidiary or the
financing of the construction of or improvements on property, whenever acquired,
provided that, under the terms of this Indebtedness and under applicable law,
the recourse at the time and thereafter of the lenders with respect to this
Indebtedness is limited to the property or assets so acquired, or the
construction or improvements, including Indebtedness as to which a performance
or completion guarantee or similar undertaking was initially applicable to the
Indebtedness or the related property or assets if the guarantee or similar
undertaking has been satisfied and is no longer in effect. Indebtedness which
is otherwise Non-Recourse Indebtedness will not lose its character as Non-
Recourse Indebtedness because there is recourse to the borrower, any guarantor
or any other person for (a) environmental representations, warranties or
indemnities, or (b) indemnities for and liabilities arising from fraud,
misrepresentation, misapplication or non-payment of rents, profits, insurance
and condemnation proceeds and other sums actually received from secured assets
to be paid to the lender, waste and mechanics' liens or similar matters.
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"Note Purchase Agreements" refers to the following note purchase
agreements, as amended, supplemented or otherwise modified from time to time,
between us and the following parties:
. John Hancock Mutual Life Insurance Company, dated December 21,
1987,
. Mellon Bank, N.A., Trustee under Master Trust Agreement of AT&T
Corporation, dated January 1, 1984, for Employee Pension Plans--
AT&T--John Hancock--Private Placement, dated December 21, 1987,
which agreement is identical to the Hancock agreement listed
above except for the parties and the amounts,
. John Hancock Mutual Life Insurance Company, dated October 11,
1989,
. The Variable Annuity Life Insurance Company, dated August 29,
1991,
. The Variable Annuity Life Insurance Company, dated August 31,
1992, and
. New York Life Insurance Company, New York Life Insurance and
Annuity Corporation, The Variable Annuity Life Insurance Company,
American General Life Insurance Company and Merit Life Insurance
Company, dated November 14, 1994.
"Principal Property" means any natural gas distribution property or propane
property located in the United States, except any property that in the opinion
of our Board of Directors is not of material importance to the total business
conducted by us and of our consolidated Subsidiaries.
"Restricted Subsidiary" means any Subsidiary the amount of Consolidated
Net Tangible Assets of which constitutes more than 5% of the aggregate amount of
Consolidated Net Tangible Assets of us and our Subsidiaries.
"Sale and Leaseback Transaction" means any arrangement with any person in
which we or any Restricted Subsidiary leases any Principal Property that has
been or is to be sold or transferred by us or the Restricted Subsidiary to that
person, other than
. a lease for a term, including renewals at the option of the
lessee, of not more than three years or classified as an
operating lease under generally accepted accounting principles,
. leases between us and a Restricted Subsidiary or between
Restricted Subsidiaries, and
. leases of a Principal Property executed by the time of, or within
12 months after the latest of, the acquisition, the completion of
construction or improvement, or the commencement of commercial
operation, of the Principal Property.
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"6 3/4% Indenture" means the Indenture dated as of July 15, 1998, between
us and U.S. Bank Trust National Association, as Trustee, as amended,
supplemented or otherwise modified from time to time.
"Subsidiary" of ours means
. a corporation, a majority of whose Capital Stock with rights,
under ordinary circumstances, to elect directors is owned,
directly or indirectly, at the date of determination, by us, by
one or more of our Subsidiaries or by us and one or more of our
Subsidiaries, or
. any other person, other than a corporation, in which at the date
of determination we, one or more of our Subsidiaries or we and
one or more of our Subsidiaries, directly or indirectly, have at
least a majority ownership and power to direct the policies,
management and affairs of that person.
"United Cities Indenture" means the Indenture of Mortgage, dated as of July
15, 1959, from United Cities Gas Company to U.S. Bank Trust National
Association, formerly First Trust of Illinois, National Association, and M.J.
Kruger, as Trustees, as amended, supplemented or otherwise modified from time to
time, the Indenture of Mortgage through the Twenty-Second Supplemental Indenture
by us to U.S. Bank Trust National Association, formerly First Trust National
Association, and Russell C. Bergman, as Trustees, as amended, supplemented, or
otherwise modified from time to time.
Consolidation, Merger or Sale of Assets
Under the terms of the indenture, we are generally permitted to consolidate
with or merge into another entity. We are also permitted to sell or transfer
our assets substantially as an entirety to another entity. However, we may not
take any of these actions unless all of the following conditions are met:
. the resulting entity must agree to be legally responsible for all
our obligations under the debt securities and the indenture,
. the transaction must not cause a default or an Event of Default,
. the resulting entity must be organized under the laws of the
United States or one of the states or the District of Columbia,
and
. we must deliver an officers' certificate and legal opinion to the
trustee with respect to the transaction.
In the event that we engage in one of these transactions and comply with
the conditions listed above, we would be discharged from all our obligations and
covenants under the indenture and all obligations under the indenture
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and all obligations under the Outstanding Securities, with the successor
corporation or person succeeding to our obligations and covenants.
In the event that we engage in one of these transactions, the indenture
provides that, if any Principal Property or Restricted Securities would
thereupon become subject to any Lien, the debt securities, other than any debt
securities not entitled to the benefit of specified covenants, must be secured,
as to such Principal Property or Restricted Securities, equally and ratably
with, or prior to, the indebtedness or obligations that upon the occurrence of
such transaction would become secured by the Lien, unless the Lien could be
created under the indenture without equally and ratably securing the debt
securities.
Modification or Waiver
There are three types of changes that we can make to the indenture and the
debt securities.
Changes Requiring Each Holder's Approval. First, there are changes that we
cannot make to the indenture or the debt securities under the indenture without
the specific approval of the holders of each debt security affected by the
change. We cannot:
. change the stated maturity of the principal of, any premium on,
or the interest on a debt security,
. change any of our obligations to pay Additional Amounts,
. reduce the amount payable upon acceleration of maturity following
the default of an Indexed Indenture security or an Original Issue
Discount Security,
. adversely affect any right of repayment at your option,
. change the place of payment of a debt security,
. impair your right to sue for payment,
. adversely affect any right to convert or exchange a debt
security,
. reduce the percentage of holders of debt securities whose consent
is needed to modify or amend the indenture,
. reduce the percentage of holders of debt securities whose consent
is needed to waive compliance with any provisions of the
indenture or to waive any defaults, and
. modify any of the provisions of the indenture dealing with
modification and waiver in any other respect, except to increase
any percentage of consents
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required to amend the indenture or for any waiver or to add to the
provisions that cannot be modified without the approval of each
affected holder.
Changes Not Requiring Approval. The second type of change does not require
any vote by the holders of the debt securities. This type is limited to
clarifications and certain other changes that would not adversely affect holders
of the outstanding debt securities in any material respect. Nor do we need any
approval to make any change that affects only debt securities to be issued under
the indenture after the changes take effect.
Changes Requiring Majority Approval. Any other change to the indenture and
the debt securities would require the following approval:
. if the change affects only one series of debt securities, it must
be approved by the holders of a majority in principal amount of
that series, or
. if the change affects more than one series of debt securities
issued under the indenture, it must be approved by the holders of
a majority in principal amount of each series affected by the
change.
In each case, the required approval must be given by written consent.
The same majority approval would be required for us to obtain a waiver of
any of our covenants in the indenture.
Further Details Concerning Voting. When taking a vote, we will use the
following rules to decide how much principal amount to attribute to a debt
security:
. for Original Issue Discount Securities, we will use the principal
amount that would be due and payable on the voting date if the
maturity of the debt securities were accelerated to that date
because of a default, and
. for debt securities whose principal amount is not known (for
example, because it is based on an index) we will use a special
rule for that debt security described in the prospectus
supplement.
Debt securities will not be considered outstanding, and therefore not
eligible to vote, if we have deposited or set aside in trust money for their
payment or redemption. Debt securities will also not be eligible to vote if
they have been fully defeased as described later under "Defeasance and Covenant
Defeasance."
Book-entry and other indirect holders should consult their banks or brokers
for information on how approval may be granted or denied if we seek to change
the indenture or the debt securities or request a waiver.
Events of Default
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You will have special rights if an Event of Default occurs as to the debt
securities of your series that is not cured, as described later in this
subsection. Please refer to the prospectus supplement for information about any
changes to the Events of Default or our covenants, including any addition of a
covenant or other provision providing event risk or similar protection.
What is an Event of Default? The term "Event of Default" as to the debt
securities of your series means any of the following:
. we do not pay interest on a debt security of the series within 30
days of its due date,
. we do not pay the principal of or any premium, if any, on a debt
security of the series on its due date,
. we remain in breach of a covenant or agreement in the indenture,
other than a covenant or agreement for the benefit of less than
all of the holders of the debt securities, for 60 days after
we receive written notice stating that we are in breach from the
trustee or the holders of at least 25% of the principal amount of
the debt securities of the series,
. we or a Restricted Subsidiary of ours is in default under any
matured or accelerated agreement or instrument under which we
have Outstanding Indebtedness for borrowed money or guarantees,
which individually are in excess of $25,000,000, and we have not
cured any acceleration within 15 days after we receive notice of
this default from the trustee or the holders of at least 25% of
the principal amount of the debt securities of the series, unless
prior to the entry of judgment for the trustee, we or the
Restricted Subsidiary remedy the default or the default is waived
by the holders of the indebtedness,
. we file for bankruptcy or other events of bankruptcy, insolvency
or reorganization occur, or
. any other Event of Default provided for the benefit of debt
securities of the series.
An Event of Default for a particular series of debt securities will not
necessarily constitute an Event of Default for any other series of debt
securities issued under the indenture.
The trustee may withhold notice to the holders of debt securities of a
particular series of any default if it considers its withholding of notice to be
in the interest of the holders of that series, except that the trustee may not
withhold notice of a default in the payment of the principal of, any premium on,
or the interest on the debt securities.
Remedies if an Event of Default Occurs. If an event of default has
occurred and is continuing, the trustee or the holders of 25% in principal
amount of the debt securities of the affected series may declare the entire
principal amount of all the debt securities of that series to
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be due and immediately payable by notifying us, and the trustee, if the holders
give notice, in writing. This is called a declaration of acceleration of
maturity.
If the maturity of any series of debt securities is accelerated and a
judgment for payment has not yet been obtained, the holders of a majority in
principal amount of the debt securities of that series may cancel the
acceleration upon our compliance with certain conditions.
Except in cases of default, where the trustee has some special duties, the
trustee is not required to take any action under the indenture at the request of
any holders unless the holders offer the trustee reasonable protection from
expenses and liability. This is called an indemnity. If reasonable indemnity
is provided, the holders of a majority in principal amount of the outstanding
debt securities of the relevant series may direct the time, method and place of
conducting any lawsuit or other formal legal action seeking any remedy available
to the trustee. The trustee may refuse to follow those directions in certain
circumstances. No delay or omission in exercising any right or remedy will be
treated as a waiver of that right, remedy or Event of Default.
Before you are allowed to bypass the trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your rights or protect
your interest relating to the debt securities, the following must occur:
. you must give the trustee written notice that an Event of Default
has occurred and remains uncured,
. the holders of 25% in principal amount of all outstanding debt
securities of the relevant series must make a written request
that the trustee take action because of the default and must
offer reasonable indemnity to the trustee against the cost and
other liabilities of taking that action,
. the trustee must not have instituted a proceeding for 60 days
after receipt of the above notice and offer of indemnity, and
. the holders of a majority in principal amount of the debt
securities must not have given the trustee a direction
inconsistent with the above notice during the 60-day period.
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your debt securities on or after the due date without complying
with the foregoing.
Holders of a majority in principal amount of the debt securities of the
affected series may waive any past defaults other than the following:
. the payment of principal, any premium, interest or Additional
Amounts on any debt security or related coupon, or
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. in respect of a covenant that under the indenture cannot be
modified or amended without the consent of each holder.
Each year, we will furnish the trustee with a written statement of two of
our officers certifying that, to their knowledge, we are in compliance with the
indenture and the debt securities, or else specifying any default.
Book-entry and other indirect holders should consult their banks or brokers
for information on how to give notice or direction to or make a request of the
trustee and how to declare or cancel an acceleration.
Defeasance and Covenant Defeasance
Unless we provide otherwise in the applicable prospectus supplement, the
provisions for full defeasance and covenant defeasance described below apply to
each series of debt securities. In general, we expect these provisions to apply
to each debt security that is not a floating rate or indexed debt security.
Full Defeasance. If there is a change in U.S. federal tax law, as
described below, we can legally release ourselves from all payment and other
obligations on the debt securities, called "full defeasance," if we put in place
the following arrangements for you to be repaid:
. we must deposit in trust for the benefit of all holders of the
debt securities a combination of money and obligations issued or
guaranteed by the U.S. government that will generate enough cash
to make interest, principal and any other payments on the debt
securities on their various due dates, and
. we must deliver to the trustee a legal opinion confirming that
there has been a change in current federal tax law or an IRS
ruling that lets us make the above deposit without causing you to
be taxed on the debt securities any differently than if we did
not make the deposit and just repaid the debt securities
ourselves at maturity. Under current federal tax law, the deposit
and our legal release from the debt securities would be treated
as though we paid you your share of the cash and notes or bonds
at the time the cash and notes or bonds are deposited in trust in
exchange for your debt securities, and you would recognize gain
or loss on the debt securities at the time of the deposit.
If we ever did accomplish defeasance, as described above, you would have to
rely solely on the trust deposit for repayment of the debt securities. You
could not look to us for repayment in the event of any shortfall. Conversely,
the trust deposit would most likely be protected from claims of our lenders and
other creditors if we ever become bankrupt or insolvent. If we accomplish a
defeasance, we would retain only the obligations to register the transfer or
exchange of the debt securities, to maintain an office or agency in respect of
the debt securities and to hold moneys for payment in trust.
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Covenant Defeasance. Under current federal tax law, we can make the same
type of deposit described above and be released from the restrictive covenants
in the indenture discussed above and specified in a prospectus supplement. This
is called "covenant defeasance". In that event, you would lose the protection of
those covenants but would gain the protection of having money and obligations
issued or guaranteed by the U.S. government set aside in trust to repay the debt
securities. In order to achieve covenant defeasance, we must do the following:
. deposit in trust for your benefit and the benefit of all other
direct holders of the debt securities a combination of money and
obligations issued or guaranteed by the U.S. government that will
generate enough cash to make interest, principal and any other
payments on the debt securities on their various due date, and
. deliver to the trustee a legal opinion of our counsel confirming
that, under current federal income tax law, we may make the above
deposit without causing you to be taxed on the debt securities
any differently than if we did not make the deposit and just
repaid the debt securities ourselves at maturity.
If we accomplish covenant defeasance, you can still look to us for
repayment of the debt securities if there were a shortfall in the trust deposit
or the trustee is prevented from making payment. In fact, if one of the
remaining Events of Default occurred, such as our bankruptcy, and the debt
securities became immediately due and payable, there may be a shortfall.
Depending on the event causing the default, you may not be able to obtain
payment of the shortfall.
Debt Securities Issued in Non-Global Form
If the debt securities cease to be issued in global form, they will be
issued:
. only in fully registered form,
. without interest coupons, and
. unless we indicate otherwise in the prospectus supplement, in
denominations of $1,000 and amounts that are multiples of $1,000.
Holders may exchange their debt securities that are not in global form for
debt securities of smaller denominations or combined into fewer debt securities
of larger denominations, as long as the total principal amount is not changed.
Holders may exchange or transfer their debt securities at the office of the
trustee. We will appoint the trustee to act as our agent for registering debt
securities in the names of holders transferring debt securities. We may appoint
another entity to perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or
exchange their debt securities, but they may be required to pay for any tax or
other governmental charge associated
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with the transfer or exchange. The transfer or exchange will be made only if our
transfer agent is satisfied with the holder's proof of legal ownership.
If we have designated additional transfer agents for your debt security,
they will be named in your prospectus supplement. We may appoint additional
transfer agents or cancel the appointment of any particular transfer agent. We
may also approve a change in the office through which any transfer agent acts.
If any debt securities are redeemable and we redeem less than all those
debt securities, we may stop the transfer or exchange of those debt securities
during the period beginning 15 days before the day we mail the notice of
redemption and ending on the day of that mailing, in order to freeze the list of
holders to prepare the mailing. We may also refuse to register transfers or
exchanges of any debt securities selected for redemption, except that we will
continue to permit transfers and exchanges of the unredeemed portion of any debt
security that will be partially redeemed.
If a debt security is issued as a global security, only the depositary will
be entitled to transfer and exchange the debt security as described in this
subsection, since it will be the sole holder of the debt security.
Payment Mechanics
Who Receives Payment? If interest is due on a debt security on an interest
payment date, we will pay the interest to the person or entity in whose name the
debt security is registered at the close of business on the regular record date,
discussed below, relating to the interest payment date. If interest is due at
maturity but on a day that is not an interest payment date, we will pay the
interest to the person or entity entitled to receive the principal of the debt
security. If principal or another amount besides interest is due on a debt
security at maturity, we will pay the amount to the holder of the debt security
against surrender of the debt security at a proper place of payment, or, in the
case of a global security, in accordance with the applicable policies of the
depositary.
Payments on Global Securities. We will make payments on a global security
in accordance with the applicable policies of the depositary as in effect from
time to time. Under those policies, we will pay directly to the depositary, or
its nominee, and not to any indirect holders who own beneficial interests in the
global security. An indirect holder's right to those payments will be governed
by the rules and practices of the depositary and its participants, as described
under "What Is a Global Security?".
Payments on Non-Global Securities. For a debt security in non-global form,
we will pay interest that is due on an interest payment date by check mailed on
the interest payment date to the holder at his or her address shown on the
trustee's records as of the close of business on the regular record date. We
will make all other payments by check, at the paying agent described below,
against surrender of the debt security. We will make all payments by check in
next-day funds; for example, funds that become available on the day after the
check is cashed.
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Alternatively, if a non-global security has a face amount of at least
$1,000,000 and the holder asks us to do so, we will pay any amount that becomes
due on the debt security by wire transfer of immediately available funds to an
account at a bank in New York City on the due date. To request wire payment,
the holder must give the paying agent appropriate transfer instructions at least
five business days before the requested wire payment is due. In the case of any
interest payment due on an interest payment date, the instructions must be given
by the person who is the holder on the relevant regular record date. In the
case of any other payment, we will make payment only after the debt security is
surrendered to the paying agent. Any wire instructions, once properly given,
will remain in effect unless and until new instructions are given in the manner
described above.
Regular Record Dates. We will pay interest to the holders listed in the
trustee's records as the owners of the debt securities at the close of business
on a particular day in advance of each interest payment date. We will pay
interest to these holders if they are listed as the owner even if they no longer
own the debt security on the interest payment date. That particular day,
usually about two weeks in advance of the interest payment date, is called the
"regular record date" and will be identified in the prospectus supplement.
Payment When Offices Are Closed. If any payment is due on a debt security
on a day that is not a business day, we will make the payment on the next day
that is a business day. Payments postponed to the next business day in this
situation will be treated under the indenture as if they were made on the
original due date. A postponement of this kind will not result in a default
under any debt security or the indenture, and no interest will accrue on the
postponed amount from the original due date to the next day that is a business
day.
Paying Agents. We may appoint one or more financial institutions to act as
our paying agents, at whose designated offices debt securities in non-global
form may be surrendered for payment at their maturity. We call each of those
offices a paying agent. We may add, replace or terminate paying agents from
time to time. We may also choose to act as our own paying agent. Initially, we
have appointed the trustee, at its corporate trust office in New York City, as
the paying agent. We must notify you of changes in the paying agents.
Book-entry and other indirect holders should consult their banks or brokers
for information on how they will receive payments on their debt securities.
The Trustee Under the Indenture
We anticipate that SunTrust Bank, Atlanta, will be trustee under the
indenture. SunTrust is among the banks with which we maintain ordinary banking
relationships.
The trustee may resign or be removed with respect to one or more series of
indenture securities and a successor trustee may be appointed to act with
respect to these series.
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<PAGE>
DESCRIPTION OF COMMON STOCK
Our authorized capital stock consists of 100,000,000 shares of common
stock, of which 31,467,514 shares were outstanding on December 24, 1999. Each of
our shares of common stock is entitled to one vote on all matters voted upon by
shareholders. Our shareholders do not have cumulative voting rights. Our issued
and outstanding shares of common stock are fully paid and nonassessable. There
are no redemption or sinking fund provisions applicable to the shares of our
common stock, and such shares are not entitled to any preemptive rights. Since
we are incorporated in both Texas and Virginia, we must comply with the laws of
both states when issuing shares of our common stock.
Holders of our shares of common stock are entitled to receive such
dividends as may be declared from time to time by our board of directors from
our assets legally available for the payment of dividends and, upon our
liquidation, a pro rata share of all of our assets available for distribution to
our shareholders.
Under the provisions of some of our debt agreements, we have agreed to
restrictions on the payment of cash dividends. Under these restrictions, our
cumulative cash dividends paid after September 30, 1988 may not exceed the sum
of 75% of our and our subsidiaries' accumulated consolidated net income for
periods after September 30, 1988 plus 100% of the net cash proceeds from the
issuance of capital stock after that date, plus $12,000,000. As of September
30, 1999, $145,584,000 was available for the declaration of dividends.
The registrar and transfer agent for our common stock is BankBoston, N.A.
Some provisions of our restated articles of incorporation and bylaws may be
deemed to have an "anti-takeover" effect. The following summary description of
these provisions is necessarily general, and we refer you to our restated
articles of incorporation and bylaws for more information since their terms
affect your rights as a shareholder.
Classification of the Board. Our board of directors is divided into three
classes, each of which consists, as nearly as may be possible, of one-third of
the total number of directors constituting the entire board. There are
currently 12 directors serving on the board. Each class of directors serves a
three-year term. At each annual meeting of our shareholders, successors to the
class of directors whose term expires at the annual meeting are elected for
three-year terms. Our restated articles of incorporation prohibit cumulative
voting. In general, in the absence of cumulative voting, one or more persons who
hold a majority of our outstanding shares can elect all of the directors who are
subject to election at any meeting of shareholders.
The classification of directors could have the effect of making it more
difficult for shareholders, including those holding a majority of the
outstanding shares, to force an immediate change in the composition of our
board. Two shareholder meetings, instead of one, generally will be required to
effect a change in the control of our board. Our board believes that the longer
time required to elect a majority of a classified board will help to ensure the
continuity and stability of our management and policies since a majority of the
directors at any given time will have had prior experience as our directors.
27
<PAGE>
Removal of Directors. Our restated articles of incorporation and bylaws
also provide that our directors may be removed only for cause and upon the
affirmative vote of the holders of at least 75% of the shares then entitled to
vote at an election of directors.
Fair Price Provisions. Article VII of our restated articles of
incorporation provides certain "fair price provisions" for our shareholders.
Under article VII, a merger, consolidation, sale of assets, share exchange,
recapitalization or other similar transaction, between us or a company
controlled by or under common control with us and any individual, corporation or
other entity which owns or controls 10% or more of our voting capital stock,
would be required to satisfy the condition that the aggregate consideration per
share to be received in the transaction for each class of our voting capital
stock be at least equal to the highest per share price, or equivalent price for
any different classes or series of stock, paid by the 10% shareholder in
acquiring any of its holdings of our stock. If a proposed transaction with a
10% shareholder does not meet this condition, then the transaction must be
approved by the holders of at least 75% of the outstanding shares of voting
capital stock held by our shareholders other than the 10% shareholder unless a
majority of the directors who were members of our board immediately prior to the
time the 10% shareholder involved in the proposed transaction became a 10%
shareholder have either:
. expressly approved in advance the acquisition of the outstanding
shares of our voting capital stock that caused the 10%
shareholder to become a 10% shareholder, or
. approved the transaction either in advance of or subsequent to
the 10% shareholder becoming a 10% shareholder.
The provisions of article VII may not be amended, altered, changed, or
repealed except by the affirmative vote of at least 75% of the votes entitled to
be cast thereon at a meeting of our shareholders duly called for consideration
of such amendment, alteration, change, or repeal. In addition, if there is a 10%
shareholder, such action must also be approved by the affirmative vote of at
least 75% of the outstanding shares of our voting capital stock held by the
shareholders other than the 10% shareholder.
Shareholder Proposals and Director Nominations. Our shareholders can submit
shareholder proposals and nominate candidates for the board of directors if the
shareholders follow the advance notice procedures described in our bylaws.
Shareholder proposals must be submitted to our corporate secretary at least
60 days, but not more than 85 days, before the annual meeting. The notice must
include a description of the proposal, the shareholder's name and address and
the number of shares held, and all other information which would be required to
be included in a proxy statement filed with the SEC if the shareholder were a
participant in a solicitation subject to the SEC proxy rules. To be included in
our proxy statement for an annual meeting, we must receive the proposal at least
120 days prior to the anniversary of the date we mailed the proxy statement for
the prior year's annual meeting.
To nominate directors, shareholders must submit a written notice to our
corporate secretary at least 60 days, but not more than 85 days, before a
scheduled meeting. The notice must include the name and address of the
shareholder and of the shareholder's nominee, the number of shares held by the
shareholder, a representation that the shareholder is a holder of record of
common stock entitled to vote at the meeting, and that the shareholder intends
to appear in person or by proxy to nominate the persons specified in the notice,
a description of any arrangements between the shareholder and the shareholder's
nominee, information about the shareholder's nominee required by the SEC, and
the written consent of the shareholder's nominee to serve as a director.
Shareholder proposals and director nominations that are late or that do not
include all required information may be rejected. This could prevent
shareholders from bringing certain matters before an annual or special meeting
or making nominations for directors.
Shareholder Rights Plan. On November 12, 1997, our board of directors
declared a dividend distribution of one right for each outstanding share of our
common stock to shareholders of record at the close of business on May 10, 1998.
Each right entitles the registered holder to purchase from us one share of our
common stock at a purchase price of $80 per share, subject to adjustment. The
description and terms of the rights are set forth in a rights agreement between
us and BankBoston, N.A. as rights agent.
Subject to exceptions specified in the rights agreement, the rights will
separate from our common stock and a distribution date will occur upon the
earlier of:
. ten business days following a public announcement that a person
or group of affiliated or associated persons has acquired, or
obtained the right to acquire, beneficial ownership of 15% or
more of the outstanding shares of our common
28
<PAGE>
stock, other than as a result of repurchases of stock by us or
specified inadvertent actions by institutional or other
shareholders,
. ten business days, or such later date as our board of directors
shall determine, following the commencement of a tender offer or
exchange offer that would result in a person or group having
acquired, or obtained the right to acquire, beneficial ownership
of 15% or more of the outstanding shares of our common stock, or
. ten business days after our board of directors shall declare any
person to be an adverse person within the meaning of the rights
plan.
The rights expire at 5:00 P.M., Boston, Massachusetts time on May 10, 2008,
unless extended prior thereto by our board or earlier if redeemed by us.
The rights will not have any voting rights. The exercise price payable and
the number of shares of our common stock or other securities or property
issuable upon exercise of the rights are subject to adjustment from time to time
to prevent dilution. We issue rights when we issue our common stock until the
rights have separated from the common stock. After the rights have separated
from the common stock, we may issue additional rights if the board of directors
deems such issuance to be necessary or appropriate.
The rights have anti-takeover effects and may cause substantial dilution to
a person or entity that attempts to acquire us on terms not approved by our
board of directors except pursuant to an offer conditioned upon a substantial
number of rights being acquired. The rights should not interfere with any merger
or other business combination approved by our board of directors because, prior
to the time that the rights become exercisable or transferable, we can redeem
the rights at $.01 per right.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus and the prospectus
supplement as follows:
. through agents,
. to or through underwriters, or
. directly to other purchasers.
We will identify any underwriters or agents and describe their compensation
in a prospectus supplement.
We, directly or through agents, may sell, and the underwriters may resell,
the offered securities in one or more transactions, including negotiated
transactions. These transactions may be:
. at a fixed public offering price or prices, which may be changed,
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<PAGE>
. at market prices prevailing at the time of sale,
. at prices related to the prevailing market prices, or
. at negotiated prices.
In connection with the sale of offered securities, the underwriters or
agents may receive compensation from us or from purchasers of the offered
securities for whom they may act as agents. The underwriters may sell offered
securities to or through dealers, who may also receive compensation from
purchasers of the offered securities for whom they may act as agents.
Compensation may be in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of the
offered securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from us and any profit on the resale
of the offered securities by them may be treated as underwriting discounts and
commissions under the Securities Act of 1933.
We will indemnify the underwriters and agents against certain civil
liabilities, including liabilities under the Securities Act of 1933.
Underwriters, dealers and agents or their affiliates may engage in
transactions with us or perform services for us.
If we indicate in the prospectus supplement relating to a particular series
or issue of offered securities, we will authorize underwriters, dealers or
agents to solicit offers by institutions to purchase the offered securities from
us under delayed delivery contracts providing for payment and delivery at a
future date. These contracts will be subject only to those conditions that we
specify in the prospectus supplement, and we will specify in the prospectus
supplement the commission payable for solicitation of these contracts.
LEGAL MATTERS
Gibson, Dunn & Crutcher LLP, Dallas, Texas, and Hunton & Williams,
Richmond, Virginia, will opine for us as to the validity of the offered
securities. Shearman & Sterling, New York, New York, will pass upon certain
legal matters related to the offered securities for any underwriters, dealers or
agents.
EXPERTS
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements of Atmos Energy Corporation for the year ended September
30, 1999, incorporated by reference in our Annual Report on Form 10-K for the
year ended September 30, 1999, as set forth in its report dated November 9,
1999. We incorporate by reference such consolidated
30
<PAGE>
financial statements in this prospectus in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC under the Securities Exchange Act. You may read and
copy this information at the following locations of the SEC:
<TABLE>
<S> <C> <C>
Judiciary Plaza, Room 1024 Seven World Trade Center, Citicorp Center
450 Fifth Street, N.W. Street Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661
</TABLE>
You can also obtain copies of this information by mail from the Public
Reference Room of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, at prescribed rates. You may obtain information on the operation of the
Public Reference Room by calling the SEC at (800) SEC-0330.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange and you can
inspect reports, proxy statements and other information about us at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
We have filed with the SEC a registration statement on Form S-3 that
registers the securities we are offering. The registration statement, including
the attached exhibits and schedules, contains additional relevant information
about us and the securities offered. The rules and regulations of the SEC allow
us to omit certain information included in the registration statement from this
prospectus.
The SEC allows us to "incorporate by reference" information into this
prospectus that we have filed with it. This means that we can disclose
important information to you by referring you to another document filed
separately with the SEC. The information incorporated by reference is
considered to be part of this prospectus, except for any information that is
superseded by information that is included directly in this document.
This prospectus includes by reference our Annual Report on Form 10-K for
the year ended September 30, 1999, that we have previously filed with the SEC
and that we have not included or delivered with this document. The Annual
Report contains important information about us, our common stock and our
financial condition.
We incorporate by reference additional documents that we may file with the
SEC between the date of this prospectus and the date of the closing of each
offering. These
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<PAGE>
documents include periodic reports, such as Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements.
You can obtain any of the documents incorporated by reference in this
document from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit to
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address or telephone number:
Atmos Energy Corporation
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
Attention: Phillip L. Allbritten
(972) 934-9227
32
<PAGE>
================================================================================
$500,000,000
ATMOS ENERGY CORPORATION
Debt Securities
and
Common Stock
--------------
PROSPECTUS
, 2000
--------------
================================================================================
33
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.. $132,000
Blue Sky fees, including counsel fees................ 2,500
Printing expenses.................................... 15,000
Trustee's fees and expenses.......................... 5,000
Rating agency fees................................... 225,000
State Filing Fees.................................... 18,000
Accounting fees and expenses......................... 30,000
Legal fees and expenses.............................. 50,000
Miscellaneous expenses............................... 20,000
--------
Total........................................... $497,000
========
</TABLE>
_______________________________
*All fees and expenses will be paid by us. All fees and expenses other
than the SEC filing fees are estimated.
Item 15. Indemnification of Directors and Officers.
The Texas Business Corporation Act and the Virginia Stock Corporation Act
permit, and in some cases require, corporations to indemnify directors and
officers who are or have been a party or are threatened to be made a party to
litigation against judgments, penalties, including excise and similar taxes,
fines, settlements, and reasonable expenses under certain circumstances.
Article IX of our Restated Articles of Incorporation, as amended, and Article IX
of our Amended and Restated Bylaws provide for indemnification of judgments,
penalties, including excise and similar taxes, fines, settlements, and
reasonable expenses and the advance payment or reimbursement of such reasonable
expenses to directors and officers to the fullest extent permitted by law.
As authorized by Article 2.02-1 of the Texas Business Corporation Act, and
Section 13.1-697 of the Virginia Stock Corporation Act, each of our directors
and officers may be indemnified by us against expenses, including attorney's
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred in connection with the defense or settlement of any threatened, pending
or completed legal proceedings in which he is involved by reason of the fact
that he is or was a director or officer of ours if he acted in good faith and in
a manner that he reasonably believed to be in or not opposed to our best
interests, and, with respect to any criminal action or proceeding, if he had no
reasonable cause to believe that his conduct was unlawful. In each case, such
indemnity shall be to the fullest extent authorized by the Texas Business
Corporation Act and the Virginia Stock Corporation Act. If the director or
officer is found liable to us, or received improper personal benefit from us,
whether or not involving action in his official capacity, then indemnification
will not be made.
II-1
<PAGE>
Article X of our Restated Articles of Incorporation, as amended, provides
that no director shall be personally liable to us or our shareholders for
monetary damages for any breach of fiduciary duty as a director except for
liability
. for any breach of duty of loyalty to us or our shareholders,
. for an act or omission not in good faith or which involves intentional
misconduct or a knowing violation of law,
. for a transaction from which the director received an improper
benefit, whether or not the benefit resulted from an action taken
within the scope of the director's office,
. for an act or omission for which the liability of a director is
expressly provided by statute, or
. for an act related to an unlawful stock repurchase or payment of a
dividend.
In addition, Article IX of our Restated Articles of Incorporation, as amended,
and Article IX of our Amended and Restated Bylaws require us to indemnify to the
fullest extent authorized by law any person made or threatened to be made party
to any action, suit or proceeding, whether criminal, civil, administrative,
arbitrative or investigative, by reason of the fact that such person is or was a
director or officer of ours or serves or served at our request as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of any other enterprise.
We maintain an officers' and directors' liability insurance policy insuring
officers and directors against certain liabilities, including liabilities under
the Securities Act of 1933. The effect of such policy is to indemnify such
officers and directors against losses incurred by them while acting in such
capacities.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions, we have been informed that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits.
Exhibit
Number Exhibits
- ------------------------------------------------------------------------------
1.1* Form of Underwriting Agreement
4.1 Form of Debt Securities Indenture between Atmos and SunTrust
Bank, Atlanta
4.2* Form of Debt Security
4.3(a) Note Purchase Agreement, dated as of December 21, 1987, by and
between the Company and John Hancock Mutual Life Insurance
Company (Exhibit 10(c) of Form 8-K filed January 7, 1988
(File No. 0-11249)).
Note Purchase Agreement, dated as of December 21, 1987, by and
between the Company and John Hancock Charitable Trust I (Agreement
is identical to Hancock Agreement listed above except as to the
parties thereto and the amounts thereof.).
Note Purchase Agreement dated as of December 21, 1987, by and
between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans --AT&T -- John Hancock -- Private Placement
(Agreement is identical to Hancock Agreement listed above except as
to the parties thereto and the amounts thereof.).
4.3(b) Amendment to Note Purchase Agreement, dated October 11, 1989, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated December 21, 1987
(Exhibit (10(b)(ii) of Form 10-K for fiscal year ended September
30, 1989 (File No. 1-10042)).
Amendment to Note Purchase Agreement, dated October 11, 1989, by
and between the Company and John Hancock Charitable Trust I
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above except as to the
parties thereto and the amounts thereof.).
Amendment to Note Purchase Agreement dated October 11, 1989, by and
between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans --AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above except as to the
parties thereto and the amounts thereof.).
4.3(c) Amendment to Note Purchase Agreement dated November 12, 1991, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated December 21, 1987
(Exhibit 10(b)(iii) of Form 10-K for fiscal year ended September
30, 1991 (File No. 1-10042)).
Amendment to Note Purchase Agreement, dated November 12, 1991, by
and between the Company and John Hancock Charitable Trust I
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above except as to the
parties thereto and the amounts thereof.).
Amendment to Note Purchase Agreement, dated November 12, 1991, by
and between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans -- AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment above except as to the parties
thereto and the amounts thereof.).
4.3(d) Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated December 21, 1987.
Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans -- AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above except as to the
parties thereto and the amounts thereof).
4.3(e) Amendment to Note Purchase Agreement, dated December 20, 1994 by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated December 21, 1987.
Amendment to Note Purchase Agreement, dated December 20, 1994, by
and between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans -- AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above).
4.3(f) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and John Hancock Mutual Life Insurance Company
revising Note Purchase Agreement dated December 21, 1987.
Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans --AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock Amendment listed above except as to the
parties thereto and the amounts thereof).
4.4(a) Note Purchase Agreement, dated as of October 11, 1989, by and
between the Company and John Hancock Mutual Life Insurance Company
(Exhibit 10(c) of Form 10-K for fiscal year ended September 30,
1989 (File No. 1-10042)).
4.4(b) Amendment to Note Purchase Agreement, dated as of November 12,
1991, by and between the Company and John Hancock Mutual Life
Insurance Company revising Note Purchase Agreement dated October
11, 1989 (Exhibit 10(c)(ii) of Form 10-K for fiscal year ended
September 30, 1991 (File No. 1-10042)).
4.4(c) Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated October 11, 1989.
4.4(d) Amendment to Note Purchase Agreement, dated December 20, 1994, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated October 11, 1989.
4.4(e) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and John Hancock Mutual Life Insurance Company
revising Note Purchase Agreement dated October 11, 1989.
4.5(a) Note Purchase Agreement, dated as of August 29, 1991, by and
between the Company and The Variable Annuity Life Insurance Company
(Exhibit 10(f)(i) of Form 10-K for fiscal year ended September 30,
1991 (File No. 10042)).
4.5(b) Amendment to Note Purchase Agreement, dated November 26, 1991, by
and between the Company and The Variable Annuity Life Insurance
Company revising Note Purchase Agreement dated August 29, 1991
(Exhibit 10(f)(ii) of Form 10-K for fiscal year ended September 30,
1991 (File No. 1-10042)).
4.5(c) Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and The Variable Annuity Life Insurance
Company revising Note Purchase Agreement dated August 29, 1991.
4.5(d) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and The Variable Annuity Life Insurance Company
revising Note Purchase Agreement dated August 29, 1991.
4.6(a) Note Purchase Agreement, dated as of August 31, 1992, by and
between the Company and The Variable Annuity Life Insurance Company
(Exhibit 10(f) of Form 10-K for fiscal year ended September 30,
1992 (File No. 1-10042)).
4.6(b) Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and the Variable Annuity Life Insurance
Company revising Note Purchase Agreement dated August 31, 1992.
4.6(c) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and The Variable Annuity Life Insurance Company
revising Note Purchase Agreement dated August 31, 1992.
4.7(a) Note Purchase Agreement, dated November 14, 1994, by and among the
Company and New York Life Insurance Company, New York Life
Insurance and Annuity Corporation, The Variable Annuity Life
Insurance Company, American General Life Insurance Company, and
Merit Life Insurance Company (Exhibit 10.1 of Form 10-Q for quarter
ended December 31, 1994 (File No. 1-10042)).
4.7(b) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
among the Company and New York Life Insurance Company, New York
Life Insurance and Annuity Corporation, The Variable Annuity Life
Insurance Company, American General Life Insurance Company and
Merit Life Insurance Company revising Note Purchase Agreement dated
November 14, 1994.
4.8 Loan Agreement by and between the Company and NationsBank of Texas,
N.A. dated as of November 26, 1996 (Exhibit 10.1 of Form 10-Q for
quarter ended December 31, 1996 (File No. 1-10042)).
4.9(a) Indenture of Mortgage, dated as of July 15, 1959, from United
Cities Gas Company to First Trust of Illinois, National
Association, and M.J. Kruger, as Trustees, as amended and
supplemented through December 1, 1992 (the Indenture of Mortgage
through the 20th Supplemental Indenture) (Exhibit to Registration
Statement of United Cities Gas Company on Form S-3 (File No. 33-
56983)).
4.9(b) Twenty-First Supplemental Indenture dated as of February 5, 1997 by
and among United Cities Gas Company and Bank of America Illinois
and First Trust National Association and Russell C. Bergman
supplementing Indenture of Mortgage dated as of July 15, 1959
(Exhibit 10.7(a) of Form 10-K for the fiscal year ended September
30, 1997 (File No. 1-10042)).
4.9(c) Twenty-Second Supplemental Indenture dated as of July 29, 1997 by
and among the Company and First Trust National Association and
Russell C. Bergman supplementing Indenture of Mortgage dated as of
July 15, 1959 (Exhibit 10.7(b) of Form 10-K for the fiscal year
ended September 30, 1997 (File No. 1-10042)).
4.10(a) Form of Indenture between United Cities Gas Company and First Trust
of Illinois, National Association, as Trustee dated as of November
15, 1995 (Exhibit to Registration Statement of United Cities Gas
Company on Form S-3 (File No. 33-56983)).
4.10(b) First Supplemental Indenture between the Company and First Trust of
Illinois, National Association, as Trustee dated as of July 29,
1997 (Exhibit 10.8(a) of Form 10-K for the fiscal year ended
September 30, 1997 (File No. 1-10042)).
4.11(a) Seventh Supplemental Indenture, dated as of October 1, 1983 between
Greeley Gas Company ("the Greeley Gas Division") and the Central
Bank of Denver, N.A. ("Central Bank") (Exhibit 10.1 of Form 10-Q
for quarter ended June 30, 1994 (File No. 1-10042)).
4.11(b) Ninth Supplemental Indenture, dated as of April 1, 1991, between
the Greeley Gas Division and Central Bank (Exhibit 10.2 of Form 10-
Q for quarter ended June 30, 1994 (File No. 1-10042)).
4.11(c) Bond Purchase Agreement, dated as of April 1, 1991, between the
Greeley Gas Division and Central Bank (Exhibit 10.3 of Form 10-Q
for quarter ended June 30, 1994 (File No. 1-10042)).
4.11(d) Tenth Supplemental Indenture, dated as of December 1, 1993, between
the Company and Colorado National Bank, formerly Central Bank
(Exhibit 10.4 of Form 10-Q for quarter ended June 30, 1994 (File
No. 1-10042)).
4.12 Restated Articles of Incorporation, as amended, of the registrant
(incorporated by reference to Exhibit 3.1 of Form 10-K for fiscal
year ended September 30, 1997) (File No. 1-10042))
4.13 Amended and Restated Bylaws of the registrant (incorporated by
reference to Exhibit 3.2 of Form 10-K for fiscal year ended
September 30, 1997 (File No. 1-10042))
4.14 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4(b) of Form 10-K for the fiscal year ended September 30,
1988 (File No. 1-10042)).
5.1 Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas, as to the
validity of
II-2
<PAGE>
the securities being registered
5.2 Opinion of Hunton & Williams, Richmond, Virginia, as to the
validity of the securities being registered
12.1 Statement of computation of ratio of earnings to fixed charges
23.1 Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (See Exhibit
5.1)
23.2 Consent of Hunton & Williams, Richmond, Virginia (See Exhibit 5.2)
23.3 Consent of Ernst & Young LLP
24.1 Powers of Attorney (See signature page of this registration
statement)
25.1 Statement of eligibility of SunTrust Bank, Atlanta, on Form T-1
_______________________________
* To be filed by amendment hereto or pursuant to a Current Report on Form 8-K to
be incorporated herein by reference.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(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 foregoing provisions described in Item
15, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such 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 Act and
will be governed by the final adjudication of such issue.
(c) 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-3
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement; 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 (c)(1)(i) and (c)(1)(ii) of this section 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 Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purposes 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.
(d) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act
under subsection (a) of section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under section 305(b)(2) of the Trust Indenture Act.
SIGNATURES AND POWERS OF ATTORNEY
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
II-4
<PAGE>
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on December 28, 1999.
ATMOS ENERGY CORPORATION
By: /s/ ROBERT W. BEST
-------------------------------------
Robert W. Best, Chairman,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Robert W. Best as his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments to this registration statement,
including post-effective amendments, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent may lawfully do or cause to be done by
virtue hereof.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ ROBERT W. BEST Chairman, President and Chief December 28, 1999
- ---------------------------------------
Robert W. Best Executive Officer (Principal
Executive Officer)
/s/ LARRY J. DAGLEY Executive Vice President and December 28, 1999
- ---------------------------------------
Larry J. Dagley Chief Financial Officer
(Principal Financial Officer)
/s/ TOM S. HAWKINS, JR. Vice President, Planning and December 28, 1999
- ---------------------------------------
Tom S. Hawkins, Jr. Budgeting and Interim
Controller (Principal
Accounting Officer)
/s/ TRAVIS W. BAIN II Director December 28, 1999
- ---------------------------------------
Travis W. Bain II
/s/ DAN BUSBEE Director December 28, 1999
- ---------------------------------------
Dan Busbee
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
/s/ RICHARD W. CARDIN Director December 28, 1999
- ---------------------------------------
Richard W. Cardin
/s/ THOMAS J. GARLAND Director December 28, 1999
- ---------------------------------------
Thomas J. Garland
/s/ GENE C. KOONCE Director December 28, 1999
- ---------------------------------------
Gene C. Koonce
/s/ VINCENT J. LEWIS Director December 28, 1999
- ---------------------------------------
Vincent J. Lewis
/s/ THOMAS C. MEREDITH Director December 28, 1999
- ---------------------------------------
Thomas C. MEREDITH
/s/ PHILLIP E. NICHOL Director December 28, 1999
- ---------------------------------------
Phillip E. Nichol
/s/ CARL S. QUINN Director December 28, 1999
- ---------------------------------------
Carl S. Quinn
/s/ CHARLES K. VAUGHAN Director December 28, 1999
- ---------------------------------------
Charles K. Vaughan
RICHARD WARE II Director December 28, 1999
- ---------------------------------------
Richard Ware II
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibits
- --------------------------------------------------------------------------------
1.1* Form of Underwriting Agreement
4.1 Form of Debt Securities Indenture between Atmos and SunTrust Bank,
Atlanta
4.2* Form of Debt Security
4.3(a) Note Purchase Agreement, dated as of December 21, 1987, by and
between the Company and John Hancock Mutual Life Insurance
Company (Exhibit 10(c) of Form 8-K filed January 7, 1988
(File No. 0-11249)).
Note Purchase Agreement, dated as of December 21, 1987, by and
between the Company and John Hancock Charitable Trust I (Agreement
is identical to Hancock Agreement listed above except as to the
parties thereto and the amounts thereof.).
Note Purchase Agreement dated as of December 21, 1987, by and
between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans --AT&T -- John Hancock -- Private Placement
(Agreement is identical to Hancock Agreement listed above except as
to the parties thereto and the amounts thereof.).
4.3(b) Amendment to Note Purchase Agreement, dated October 11, 1989, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated December 21, 1987
(Exhibit (10(b)(ii) of Form 10-K for fiscal year ended September
30, 1989 (File No. 1-10042)).
Amendment to Note Purchase Agreement, dated October 11, 1989, by
and between the Company and John Hancock Charitable Trust I
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above except as to the
parties thereto and the amounts thereof.).
Amendment to Note Purchase Agreement dated October 11, 1989, by and
between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans --AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above except as to the
parties thereto and the amounts thereof.).
4.3(c) Amendment to Note Purchase Agreement dated November 12, 1991, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated December 21, 1987
(Exhibit 10(b)(iii) of Form 10-K for fiscal year ended September
30, 1991 (File No. 1-10042)).
Amendment to Note Purchase Agreement, dated November 12, 1991, by
and between the Company and John Hancock Charitable Trust I
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above except as to the
parties thereto and the amounts thereof.).
Amendment to Note Purchase Agreement, dated November 12, 1991, by
and between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans -- AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment above except as to the parties
thereto and the amounts thereof.).
4.3(d) Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated December 21, 1987.
Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans -- AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above except as to the
parties thereto and the amounts thereof).
4.3(e) Amendment to Note Purchase Agreement, dated December 20, 1994 by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated December 21, 1987.
Amendment to Note Purchase Agreement, dated December 20, 1994, by
and between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans -- AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock amendment listed above).
4.3(f) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and John Hancock Mutual Life Insurance Company
revising Note Purchase Agreement dated December 21, 1987.
Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and Mellon Bank, N.A., Trustee under Master
Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans --AT&T -- John Hancock -- Private Placement
revising Note Purchase Agreement dated December 21, 1987 (Amendment
is identical to Hancock Amendment listed above except as to the
parties thereto and the amounts thereof).
4.4(a) Note Purchase Agreement, dated as of October 11, 1989, by and
between the Company and John Hancock Mutual Life Insurance Company
(Exhibit 10(c) of Form 10-K for fiscal year ended September 30,
1989 (File No. 1-10042)).
4.4(b) Amendment to Note Purchase Agreement, dated as of November 12,
1991, by and between the Company and John Hancock Mutual Life
Insurance Company revising Note Purchase Agreement dated October
11, 1989 (Exhibit 10(c)(ii) of Form 10-K for fiscal year ended
September 30, 1991 (File No. 1-10042)).
4.4(c) Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated October 11, 1989.
4.4(d) Amendment to Note Purchase Agreement, dated December 20, 1994, by
and between the Company and John Hancock Mutual Life Insurance
Company revising Note Purchase Agreement dated October 11, 1989.
4.4(e) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and John Hancock Mutual Life Insurance Company
revising Note Purchase Agreement dated October 11, 1989.
4.5(a) Note Purchase Agreement, dated as of August 29, 1991, by and
between the Company and The Variable Annuity Life Insurance Company
(Exhibit 10(f)(i) of Form 10-K for fiscal year ended September 30,
1991 (File No. 10042)).
4.5(b) Amendment to Note Purchase Agreement, dated November 26, 1991, by
and between the Company and The Variable Annuity Life Insurance
Company revising Note Purchase Agreement dated August 29, 1991
(Exhibit 10(f)(ii) of Form 10-K for fiscal year ended September 30,
1991 (File No. 1-10042)).
4.5(c) Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and The Variable Annuity Life Insurance
Company revising Note Purchase Agreement dated August 29, 1991.
4.5(d) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and The Variable Annuity Life Insurance Company
revising Note Purchase Agreement dated August 29, 1991.
4.6(a) Note Purchase Agreement, dated as of August 31, 1992, by and
between the Company and The Variable Annuity Life Insurance Company
(Exhibit 10(f) of Form 10-K for fiscal year ended September 30,
1992 (File No. 1-10042)).
4.6(b) Amendment to Note Purchase Agreement, dated December 22, 1993, by
and between the Company and the Variable Annuity Life Insurance
Company revising Note Purchase Agreement dated August 31, 1992.
4.6(c) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
between the Company and The Variable Annuity Life Insurance Company
revising Note Purchase Agreement dated August 31, 1992.
4.7(a) Note Purchase Agreement, dated November 14, 1994, by and among the
Company and New York Life Insurance Company, New York Life
Insurance and Annuity Corporation, The Variable Annuity Life
Insurance Company, American General Life Insurance Company, and
Merit Life Insurance Company (Exhibit 10.1 of Form 10-Q for quarter
ended December 31, 1994 (File No. 1-10042)).
4.7(b) Amendment to Note Purchase Agreement, dated July 29, 1997, by and
among the Company and New York Life Insurance Company, New York
Life Insurance and Annuity Corporation, The Variable Annuity Life
Insurance Company, American General Life Insurance Company and
Merit Life Insurance Company revising Note Purchase Agreement dated
November 14, 1994.
4.8 Loan Agreement by and between the Company and NationsBank of Texas,
N.A. dated as of November 26, 1996 (Exhibit 10.1 of Form 10-Q for
quarter ended December 31, 1996 (File No. 1-10042)).
4.9(a) Indenture of Mortgage, dated as of July 15, 1959, from United
Cities Gas Company to First Trust of Illinois, National
Association, and M.J. Kruger, as Trustees, as amended and
supplemented through December 1, 1992 (the Indenture of Mortgage
through the 20th Supplemental Indenture) (Exhibit to Registration
Statement of United Cities Gas Company on Form S-3 (File No. 33-
56983)).
4.9(b) Twenty-First Supplemental Indenture dated as of February 5, 1997 by
and among United Cities Gas Company and Bank of America Illinois
and First Trust National Association and Russell C. Bergman
supplementing Indenture of Mortgage dated as of July 15, 1959
(Exhibit 10.7(a) of Form 10-K for the fiscal year ended September
30, 1997 (File No. 1-10042)).
4.9(c) Twenty-Second Supplemental Indenture dated as of July 29, 1997 by
and among the Company and First Trust National Association and
Russell C. Bergman supplementing Indenture of Mortgage dated as of
July 15, 1959 (Exhibit 10.7(b) of Form 10-K for the fiscal year
ended September 30, 1997 (File No. 1-10042)).
4.10(a) Form of Indenture between United Cities Gas Company and First Trust
of Illinois, National Association, as Trustee dated as of November
15, 1995 (Exhibit to Registration Statement of United Cities Gas
Company on Form S-3 (File No. 33-56983)).
4.10(b) First Supplemental Indenture between the Company and First Trust of
Illinois, National Association, as Trustee dated as of July 29,
1997 (Exhibit 10.8(a) of Form 10-K for the fiscal year ended
September 30, 1997 (File No. 1-10042)).
4.11(a) Seventh Supplemental Indenture, dated as of October 1, 1983 between
Greeley Gas Company ("the Greeley Gas Division") and the Central
Bank of Denver, N.A. ("Central Bank") (Exhibit 10.1 of Form 10-Q
for quarter ended June 30, 1994 (File No. 1-10042)).
4.11(b) Ninth Supplemental Indenture, dated as of April 1, 1991, between
the Greeley Gas Division and Central Bank (Exhibit 10.2 of Form 10-
Q for quarter ended June 30, 1994 (File No. 1-10042)).
4.11(c) Bond Purchase Agreement, dated as of April 1, 1991, between the
Greeley Gas Division and Central Bank (Exhibit 10.3 of Form 10-Q
for quarter ended June 30, 1994 (File No. 1-10042)).
4.11(d) Tenth Supplemental Indenture, dated as of December 1, 1993, between
the Company and Colorado National Bank, formerly Central Bank
(Exhibit 10.4 of Form 10-Q for quarter ended June 30, 1994 (File
No. 1-10042)).
4.12 Restated Articles of Incorporation, as amended, of the registrant
(incorporated by reference to Exhibit 3.1 of Form 10-K for fiscal
year ended September 30, 1997) (File No. 1-10042))
4.13 Amended and Restated Bylaws of the registrant (incorporated by
reference to Exhibit 3.2 of Form 10-K for fiscal year ended
September 30, 1997 (File No. 1-10042))
4.14 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4(b) of Form 10-K for the fiscal year ended September 30,
1988 (File No. 1-10042)).
5.1 Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas, as to the
validity of the securities being registered
5.2 Opinion of Hunton & Williams, Richmond, Virginia, as to the
validity of the securities being registered
12.1 Statement of computation of ratio of earnings to fixed charges
23.1 Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (See
Exhibit 5.1)
23.2 Consent of Hunton & Williams, Richmond, Virginia (See Exhibit
5.2)
23.3 Consent of Ernst & Young LLP
24.1 Powers of Attorney (See signature page of this registration
statement)
25.1 Statement of eligibility of SunTrust Bank, Atlanta, on Form T-1
_______________________________
* To be filed by amendment hereto or pursuant to a Current Report on Form 8-K to
be incorporated herein by reference.
II-7
<PAGE>
EXHIBIT 4.1
===============================================================================
ATMOS ENERGY CORPORATION,
Issuer,
to
SUNTRUST BANK, ATLANTA
Trustee
---------------
Indenture
Dated as of ,
---------------
Debt Securities
===============================================================================
<PAGE>
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ___________, 2000
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1) .................................. 608
(a)(2) .................................. 608
(b) .................................. 604, 607, 609(d)(1)
(S) 311(a) .................................. 101(2), 604, 613
(b) .................................. 101(2), 604, 613
(S) 312(c) .................................. 701
(S) 313 .................................. 702
(S) 314(a) .................................. 703
(a)(4) .................................. 1004
(c)(1) .................................. 102
(c)(2) .................................. 102
(e) .................................. 101 ("Opinion of
Counsel"), 102
(S) 315(b) .................................. 601
(S) 316(a)(last
sentence) .................................. 101 ("Outstanding")
(a)(1)(A) .................................. 512
(a)(1)(B) .................................. 513
(b) .................................. 508
(c) .................................. 104(d)
(S) 317(a)(1) .................................. 503
(a)(2) .................................. 504
(b) .................................. 1003
(S) 318(a) .................................. 107
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES.......................................................................................... 1
RECITALS OF THE COMPANY.......................................................................... 1
</TABLE>
____________________
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions........................................................................ 1
Act.............................................................................. 2
Additional Amounts............................................................... 2
Affiliate........................................................................ 2
Attributable Debt................................................................ 2
Authenticating Agent............................................................. 2
Authorized Newspaper............................................................. 2
Authorized Officer............................................................... 3
Bankruptcy Law................................................................... 3
Board of Directors............................................................... 3
Board Resolution................................................................. 3
Book-Entry Security.............................................................. 3
Business Day..................................................................... 3
Capital Stock.................................................................... 3
Cedel............................................................................ 3
Commission....................................................................... 3
Company.......................................................................... 4
Company Request or Company Order................................................. 4
Consolidated Net Tangible Assets................................................. 4
Corporate Trust Office........................................................... 4
corporation...................................................................... 4
covenant defeasance.............................................................. 4
Custodian........................................................................ 4
Debt............................................................................. 4
Default.......................................................................... 4
Defaulted Interest............................................................... 5
defeasance....................................................................... 5
Definitive Security.............................................................. 5
Depository....................................................................... 5
Euroclear........................................................................ 5
Event of Default................................................................. 5
Exchange Act..................................................................... 5
Extension Notice and Extension Period............................................ 5
Final Maturity................................................................... 5
Funded Indebtedness.............................................................. 5
generally accepted accounting principles or GAAP................................. 5
Global Securities................................................................ 5
Government Obligations........................................................... 5
Greeley Indenture................................................................ 6
guarantee........................................................................ 6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
Holder........................................................................... 6
incorporated provision........................................................... 6
Indebtedness..................................................................... 6
Indenture........................................................................ 6
Indexed Security................................................................. 7
interest......................................................................... 7
Interest Payment Date............................................................ 7
Lien............................................................................. 7
mandatory sinking fund payment................................................... 7
Maturity......................................................................... 7
Non-Recourse Indebtedness........................................................ 8
Note Purchase Agreements......................................................... 8
Officers' Certificate............................................................ 8
Opinion of Counsel............................................................... 8
Option to Elect Repayment........................................................ 8
Optional Reset Date.............................................................. 9
optional sinking fund payment.................................................... 9
Original Issue Discount Security................................................. 9
Original Stated Maturity......................................................... 9
Outstanding...................................................................... 9
Paying Agent..................................................................... 10
Person........................................................................... 10
Place of Payment................................................................. 10
Predecessor Security............................................................. 10
Principal Property............................................................... 10
Redemption Date.................................................................. 10
Redemption Price................................................................. 10
Regular Record Date.............................................................. 11
Repayment Date................................................................... 11
Repayment Price.................................................................. 11
Reset Notice..................................................................... 11
Restricted Securities............................................................ 11
Restricted Subsidiary............................................................ 11
Sale and Leaseback Transaction................................................... 11
Securities....................................................................... 11
Security Register and Security Registrar......................................... 11
6 3/4% Indenture................................................................. 12
Special Record Date.............................................................. 12
Stated Maturity.................................................................. 12
Subsequent Interest Period....................................................... 12
Subsidiary....................................................................... 12
Trust Indenture Act or TIA....................................................... 12
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
Trustee.......................................................................... 12
Trustee Payments................................................................. 12
United Cities Indenture.......................................................... 12
United States.................................................................... 13
United States person............................................................. 13
Vice President................................................................... 13
Yield to Maturity................................................................ 13
SECTION 102. Compliance Certificates and Opinions............................................... 13
SECTION 103. Form of Documents Delivered to Trustee............................................. 14
SECTION 104. Acts of Holders.................................................................... 14
SECTION 105. Notices, etc. to Trustee and Company............................................... 15
SECTION 106. Notice to Holders; Waiver.......................................................... 16
SECTION 107. Conflict of any Provision of Indenture with Trust Indenture Act.................... 16
SECTION 108. Effect of Headings and Table of Contents........................................... 17
SECTION 109. Successors and Assigns............................................................. 17
SECTION 110. Separability Clause................................................................ 17
SECTION 111. Benefits of Indenture.............................................................. 17
SECTION 112. Governing Law...................................................................... 17
SECTION 113. Legal Holidays..................................................................... 17
SECTION 114. No Recourse Against Others......................................................... 18
ARTICLE TWO SECURITY FORMS
SECTION 201. Forms Generally.................................................................... 18
SECTION 202. Form of Trustee's Certificate of Authentication.................................... 19
SECTION 203. Securities Issuable in Global Form................................................. 19
SECTION 204. Form of Legend for Book-Entry Securities........................................... 20
ARTICLE THREE THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series............................................... 20
SECTION 302. Denominations...................................................................... 23
SECTION 303. Execution, Authentication, Delivery and Dating..................................... 24
SECTION 304. Book-Entry Securities.............................................................. 25
SECTION 305. Temporary Securities............................................................... 27
SECTION 306. Registration, Registration of Transfer and Exchange................................ 28
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities................................... 29
SECTION 308. Payment of Interest; Interest Rights Preserved; Optional Interest Reset............ 32
SECTION 309. Optional Extension of Stated Maturity.............................................. 32
SECTION 310. Persons Deemed Owners.............................................................. 33
SECTION 311. Cancellation....................................................................... 34
SECTION 312. Computation of Interest............................................................ 34
SECTION 313. CUSIP Numbers...................................................................... 34
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
ARTICLE FOUR SATISFACTION AND DISCHARGE
<S> <C>
SECTION 401. Satisfaction and Discharge of Indenture............................................ 35
SECTION 402. Application of Trust Money......................................................... 36
ARTICLE FIVE REMEDIES
SECTION 501. Events of Default.................................................................. 36
SECTION 502. Acceleration of Maturity; Rescission and Annulment................................. 38
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................... 39
SECTION 504. Trustee May File Proofs of Claim................................................... 39
SECTION 505. Trustee May Enforce Claims Without Possession of Securities........................ 40
SECTION 506. Application of Money Collected..................................................... 40
SECTION 507. Limitation on Suits................................................................ 41
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.......... 42
SECTION 509. Restoration of Rights and Remedies................................................. 42
SECTION 510. Rights and Remedies Cumulative..................................................... 42
SECTION 511. Delay or Omission Not Waiver....................................................... 42
SECTION 512. Control by Holders................................................................. 42
SECTION 513. Waiver of Past Defaults............................................................ 43
SECTION 514. Undertaking for Costs.............................................................. 43
SECTION 515. Waiver of Stay or Extension Laws................................................... 44
ARTICLE SIX THE TRUSTEE
SECTION 601. Notice of Defaults................................................................. 44
SECTION 602. Certain Rights of Trustee.......................................................... 44
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities..................... 46
SECTION 604. May Hold Securities................................................................ 46
SECTION 605. Money Held in Trust................................................................ 46
SECTION 606. Compensation and Reimbursement..................................................... 46
SECTION 607. Conflicting Interests.............................................................. 47
SECTION 608. Corporate Trustee Required; Eligibility; Conflicting Interests..................... 47
SECTION 609. Resignation and Removal; Appointment of Successor.................................. 47
SECTION 610. Acceptance of Appointment by Successor............................................. 49
SECTION 611. Merger, Conversion, Consolidation or Succession to Business........................ 50
SECTION 612. Appointment of Authenticating Agent................................................ 51
SECTION 613. Preferential Collection of Claims Against Company.................................. 52
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701. Disclosure of Names and Addresses of Holders....................................... 53
SECTION 702. Reports by Trustee................................................................. 53
SECTION 703. Reports by Company................................................................. 53
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms............................... 54
SECTION 802. Rights and Duties of Successor Corporation......................................... 54
SECTION 803. Securities to be Secured in Certain Events......................................... 55
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders................................. 56
SECTION 902. Supplemental Indentures with Consent of Holders.................................... 57
SECTION 903. Execution of Supplemental Indentures............................................... 58
SECTION 904. Effect of Supplemental Indentures.................................................. 58
SECTION 905. Conformity with Trust Indenture Act................................................ 58
SECTION 906. Reference in Securities to Supplemental Indentures................................. 59
SECTION 907. Notice of Supplemental Indentures.................................................. 59
ARTICLE TEN COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest........................................ 59
SECTION 1002. Maintenance of Office or Agency................................................... 59
SECTION 1003. Money for Security Payments to Be Held in Trust................................... 60
SECTION 1004. Statement as to Compliance........................................................ 61
SECTION 1005. Corporate Existence............................................................... 61
SECTION 1006. Limitations on Liens.............................................................. 62
SECTION 1007. Limitation on Sale and Leaseback Transactions...................................... 63
SECTION 1008. Additional Amounts................................................................. 64
SECTION 1009. Waiver of Certain Covenants........................................................ 65
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.......................................................... 65
SECTION 1102. Election to Redeem; Notice to Trustee............................................. 65
SECTION 1103. Selection by Trustee of Securities to Be Redeemed................................. 66
SECTION 1104. Notice of Redemption.............................................................. 66
SECTION 1105. Deposit of Redemption Price....................................................... 67
SECTION 1106. Securities Payable on Redemption Date............................................. 67
SECTION 1107. Securities Redeemed in Part....................................................... 68
ARTICLE TWELVE SINKING FUNDS
SECTION 1201. Applicability of Article.......................................................... 68
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities............................. 69
SECTION 1203. Redemption of Securities for Sinking Fund......................................... 69
ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.......................................................... 70
SECTION 1302. Repayment of Securities........................................................... 70
SECTION 1303. Exercise of Option................................................................ 71
SECTION 1304. When Securities Presented for Repayment Become Due and Payable.................... 71
SECTION 1305. Securities Repaid in Part......................................................... 72
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance...................... 72
SECTION 1402. Defeasance and Discharge.......................................................... 72
SECTION 1403. Covenant Defeasance............................................................... 73
SECTION 1404. Conditions to Defeasance or Covenant Defeasance................................... 73
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions................................... 75
SECTION 1406. Reinstatement..................................................................... 76
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<PAGE>
INDENTURE, dated as of , , between Atmos Energy
Corporation, a Texas and Virginia corporation (herein called the "Company"), and
SunTrust Bank, Atlanta, a banking corporation with trust powers organized and
existing under the laws of the State of Georgia, trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior debt
securities (herein called the "Securities"), to be issued in one or more series
as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-
liquidating paper", as used in TIA Section 311, shall have the meanings
assigned to them in the rules of the Commission adopted under the Trust
Indenture Act;
<PAGE>
2
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and except as otherwise herein expressly provided, the term
"generally 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; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1008.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding amounts required
to be paid on account of maintenance and repairs, services, insurance, taxes,
assessments, water rates and similar charges and contingent rents), discounted
from the respective due dates thereof at the weighted average of the rates of
interest (or Yield to Maturity, in the case of Original Issue Discount
Securities) borne by the then Outstanding Securities, compounded annually.
"Authenticating Agent" means any Person appointed by the Trustee to
act on behalf of the Trustee pursuant to Section 612 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
<PAGE>
3
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Authorized Officer", when used with respect to the Trustee, means any
vice-president, assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or assistant trust officer, the controller and any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above-designated officers, in
each case who is assigned by the Trustee to administer corporate trust matters
at its Corporate Trust Office, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or
any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in Section 304.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests (however designated) in stock issued by that
corporation.
"Cedel" means Cedel Bank, societe anonyme, or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
<PAGE>
4
"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. To the extent necessary to comply
with the requirements of the provisions of TIA Sections 310 through 317 as they
are applicable to the Company, the term "Company" shall include any other
obligor with respect to the Securities for the purposes of complying with such
provisions.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its Chairman, Chief Executive Officer,
its President or a Vice President and (ii) by its Treasurer, an Assistant
Treasurer, its Corporate Secretary or an Assistant Corporate Secretary and
delivered to the Trustee; provided, however, that such written request or order
-------- -------
may be signed by any two of the officers or directors listed in clause (i) above
in lieu of being signed by one of such officers or directors listed in such
clause (i) and one of the officers listed in clause (ii) above.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities (excluding any portion thereof
constituting Funded Indebtedness) and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent consolidated balance sheet of
the Company contained in the latest quarterly or annual report of the Company
filed with the Commission under the Exchange Act and computed in accordance with
generally accepted accounting principles.
"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 on the date of execution of this Indenture is located
at SunTrust Bank, Atlanta, Corporate Trust Division, 25 Park Place, 24th Floor,
Atlanta, Georgia 30303-2900, Attention: Corporate Trust Department.
"corporation" includes corporations, associations, partnerships,
limited liability companies, companies and business trusts.
"covenant defeasance" has the meaning specified in Section 1403
hereof.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar officer under any Bankruptcy Law.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
<PAGE>
5
"Defaulted Interest" has the meaning specified in Section 308 hereof.
"defeasance" has the meaning specified in Section 1402 hereof.
"Definitive Security" has the meaning specified in Section 304 hereof.
"Depository" has the meaning specified in Section 304.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extension Notice" and "Extension Period" shall have the meanings
specified in Section 309.
"Final Maturity" has the meaning specified in Section 309.
"Funded Indebtedness" as applied to any Person, means all Indebtedness
of such Person maturing after, or renewable or extendable at the option of such
Person beyond, 12 months from the date of determination.
"generally accepted accounting principles" or "GAAP" means generally
accepted accounting principles in the United States.
"Global Securities" means one or more Securities evidencing all or
part of the Securities to be issued as Book-Entry Securities, issued to the
Depository in accordance with Section 301 and bearing the legend prescribed in
Section 204.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are (i) direct obligations of the United States government or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States government, the payment of which is
unconditionally guaranteed by the United States government, which, in either
case, are full faith and credit obligations of the United States government
payable and are not callable or redeemable at the option of the issuer thereof
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
--------
(except as required by law) such
<PAGE>
6
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest or
principal of the Government Obligation evidenced by such depository receipt.
"Greeley Indenture" means that certain Indenture of Mortgage and Deed
of Trust, dated as of March 1, 1957, from Greeley Gas Company to U.S. Bank
National Association (formerly The Central Bank and Trust Company), as Trustee,
as amended and supplemented through December 1, 1993 (the Indenture of Mortgage
and Deed of Trust through the Tenth Supplemental Indenture by the Company to
U.S. Bank National Association (formerly The Central Bank and Trust Company), as
Trustee), as amended, supplemented or otherwise modified from time to time.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation or (ii) an agreement, direct or indirect, contingent or
otherwise, providing assurance of the payment or performance (or payment of
damages in the event of non-performance) of any part or all of such obligation,
including, without limiting the foregoing, the payment of amounts drawn down by
letters of credit. Notwithstanding anything herein to the contrary, a guarantee
shall not include any agreement solely because such agreement creates a Lien on
the assets of any Person. The amount of a guarantee shall be deemed to be the
maximum amount of the obligation guaranteed for which the guarantor could be
held liable under such guarantee.
"Holder" means the Person in whose name a Security is registered in
the Security Register.
"incorporated provision" has the meaning specified in Section 107.
"Indebtedness" means obligations for money borrowed, evidenced by
notes, bonds, debentures or other similar evidences of indebtedness.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, and shall include the terms
of particular series of Securities established as contemplated by Section 301;
provided, however, that, if at any time there is more than one series of
- -------- -------
Securities issued under this instrument, "Indenture" shall mean, with respect to
each such series of Securities, this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the provisions hereof applicable to
such series and shall include the terms of such series of Securities established
as contemplated by
<PAGE>
7
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities, regardless of when such terms or provisions were
adopted.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Lien" means any lien, mortgage, pledge, encumbrance, charge or
security interest securing Indebtedness; provided, however, that the following
-------- -------
types of transactions will not be considered for purposes of this definition to
result in a Lien: (i) any acquisition by the Company or any Restricted
Subsidiary of any property or assets subject to any reservation or exception
under the terms of which any vendor, lessor or assignor creates, reserves or
excepts or has created, reserved or excepted an interest in oil, gas or any
other mineral in place or the proceeds thereof, (ii) any conveyance or
assignment whereby the Company or any Restricted Subsidiary conveys or assigns
to any Person or Persons an interest in oil, gas or any other mineral in place
or the proceeds thereof, (iii) any Lien upon any property or assets either owned
or leased by the Company or any Restricted Subsidiary or in which the Company or
any Restricted Subsidiary owns an interest that secures for the benefit of the
Person or Persons paying the expenses of developing or conducting operations for
the recovery, storage, transportation or sale of the mineral resources of such
property or assets (or property or assets with which it is unitized) the payment
to such Person or Persons of the Company's or the Restricted Subsidiary's
proportionate part of such development or operating expenses, (iv) any hedging
arrangements entered into in the ordinary course of business, including any
obligation to deliver any mineral, commodity or asset in connection therewith or
(v) any guarantees by the Company of the repayment of Indebtedness of any
Subsidiary or guarantees by the Company or any Subsidiary of the repayment of
Indebtedness of any entity, including, but not limited to, Indebtedness of
Woodward Marketing, L.L.C.
"mandatory sinking fund payment" shall have the meaning specified in
Section 1201.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided whether at the Stated Maturity, by declaration of acceleration,
notice of redemption, notice of option to elect repayment or otherwise.
<PAGE>
8
"Non-Recourse Indebtedness" means, at any time, Indebtedness incurred
after the date of the Indenture by the Company or a Restricted Subsidiary in
connection with the acquisition of property or assets by the Company or a
Restricted Subsidiary or the financing of the construction of or improvements on
property, whenever acquired, provided that, under the terms of such Indebtedness
--------
and pursuant to applicable law, the recourse at such time and thereafter of the
lenders with respect to such Indebtedness is limited to the property or assets
so acquired, or such construction or improvements, including Indebtedness as to
which a performance or completion guarantee or similar undertaking was initially
applicable to such Indebtedness or the related property or assets if such
guarantee or similar undertaking has been satisfied and is no longer in effect.
Indebtedness which is otherwise Non-Recourse Indebtedness will not lose its
character as Non-Recourse Indebtedness because there is recourse to the
borrower, any guarantor or any other person for (a) environmental
representations, warranties or indemnities, or (b) indemnities for and
liabilities arising from fraud, misrepresentation, misapplication or non-payment
of rents, profits, insurance and condemnation proceeds and other sums actually
received from secured assets to be paid to the lender, waste and mechanics'
liens or similar matters.
"Note Purchase Agreements" collectively refers to the following Note
Purchase Agreements, as amended, which were executed by and between the Company
and the following parties on the dates indicated: (i) John Hancock Mutual Life
Insurance Company, dated December 21, 1987; (ii) Mellon Bank, N.A., Trustee
under Master Trust Agreement of AT&T Corporation, dated January 1, 1984, for
Employee Pension Plans - AT&T - John Hancock - Private Placement, dated December
21, 1987 (Agreement is identical to Hancock Agreement listed above except as to
the parties thereto and the amounts thereof); (iii) John Hancock Mutual Life
Insurance Company, dated October 11, 1989; (iv) The Variable Annuity Life
Insurance Company, dated August 29, 1991; (v) The Variable Annuity Life
Insurance Company, dated August 31, 1992; and (vi) New York Life Insurance
Company, New York Life Insurance and Annuity Corporation, The Variable Annuity
Life Insurance Company, American General Life Insurance Company and Merit Life
Insurance Company, dated November 14, 1994; as amended, supplemented or
otherwise modified from time to time.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, Chief Executive Officer, the President, a Vice President or the
Treasurer of the Company and (ii) the Corporate Secretary or an Assistant
Corporate Secretary of the Company and delivered to the Trustee; provided,
--------
however, that such certificate may be signed by two of the officers or directors
- -------
listed in clause (i) above in lieu of being signed by one of such officers or
directors listed in such clause (i) and one of the officers listed in clause
(ii) above.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in TIA Section 314(e) to the
extent applicable.
"Option to Elect Repayment" shall have the meaning specified in
Section 1303.
<PAGE>
9
"Optional Reset Date" shall have the meaning specified in Section 308.
"optional sinking fund payment" shall have the meaning specified in
Section 1201.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Original Stated Maturity" shall have the meaning specified in Section
309.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment, purchase,
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
--------
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities paid pursuant to Section 307 or Securities in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
- -------- -------
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder, and for the purpose of making the
calculations required by TIA Section 316, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant
<PAGE>
10
to Section 502, (ii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iii) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which an Authorized
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any) or interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"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 307 in exchange for a mutilated
Security or in lieu of a destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any natural gas distribution property or
propane property located in the United States, except any such property that in
the opinion of the Board of Directors of the Company is not of material
importance to the total business conducted by the Company and its consolidated
Subsidiaries.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
<PAGE>
11
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Reset Notice" shall have the meaning specified in Section 308.
"Restricted Securities" has the meaning specified in Section 1006.
"Restricted Subsidiary" means any Subsidiary the amount of
Consolidated Net Tangible Assets of which constitutes more than 5% of the
aggregate amount of Consolidated Tangible Net Assets of the Company and its
Subsidiaries.
"Sale and Leaseback Transaction" means any arrangement with any Person
pursuant to which the Company or any Restricted Subsidiary leases any Principal
Property that has been or is to be sold or transferred by the Company or the
Restricted Subsidiary to such Person, other than (i) a lease for a term,
including renewals at the option of the lessee, of not more than three years or
classified as an operating lease under generally accepted accounting principles,
(ii) leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries and (iii) leases of a Principal Property executed by the
time of, or within 12 months after the latest of, the acquisition, the
completion of construction or improvement, or the commencement of commercial
operation, of the Principal Property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
-------- -------
one series of Securities, "Securities" with respect to the Indenture for such
series shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under such
Indenture, exclusive, however, of Securities of any series authenticated and
delivered under any other Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
<PAGE>
12
"6 3/4% Indenture" means the Indenture dated as of July 15, 1998,
between the Company and U.S. Bank Trust National Association, as Trustee, as
amended, supplemented or otherwise modified from time to time.
"Special Record Date" means a date fixed by the Trustee for the
payment of any Defaulted Interest pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security representing such installment of principal or interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 309.
"Subsequent Interest Period" shall have the meaning specified in
Section 308.
"Subsidiary" of the Company means (i) a corporation, a majority of
whose Capital Stock with voting power, under ordinary circumstances, to elect
directors is owned, directly or indirectly, at the date of determination, by the
Company, by one or more Subsidiaries or by the Company and one or more
Subsidiaries or (ii) any other Person (other than a corporation) in which at the
date of determination the Company, one or more Subsidiaries or the Company and
one or more Subsidiaries, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
- -------- -------
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United Cities Indenture" means that certain Indenture of Mortgage,
dated as of July 15, 1959, from United Cities Gas Company to U.S. Bank Trust
National Association (formerly First Trust of Illinois, National Association),
and M.J. Kruger, as Trustees, as amended and supplemented through July 29, 1997
(the Indenture of Mortgage through the Twenty-Second Supplemental Indenture by
the Company to U.S. Bank Trust National Association (formerly First Trust of
Illinois, National Association) and Russell C. Bergman, as Trustees), as
amended, supplemented or otherwise modified from time to time.
"Trustee Payments" shall have the meaning specified in Section 610.
<PAGE>
13
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion (other than the certificates required by
Section 1004) with respect to compliance with a covenant or condition provided
for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
<PAGE>
14
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. 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 or so voting at any such meeting.
<PAGE>
15
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 TIA Section 315) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of such 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. Notwithstanding TIA
Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days
prior to the first solicitation of Holders generally in connection therewith and
no later than the date such solicitation is completed. 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 such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Securities then Outstanding have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Securities then Outstanding shall be
computed as of such record date; provided that no such request, demand,
--------
authorization, direction, notice, consent, waiver or other Act by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or 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, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. Notices, etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
<PAGE>
16
(1) the Trustee by any Holder, an agent of any bank or the Company
shall be sufficient for every purpose hereunder if made, given, furnished
or delivered, in writing, to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department; or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or delivered, in writing, to the Company addressed
to it c/o 1800 Three Lincoln Centre, 5430 LBJ Freeway, Dallas, Texas 75240,
Attention: Treasurer, or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders of
Securities by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Securities. Any notice mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Securities when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Conflict of any Provision of Indenture with Trust
-------------------------------------------------
Indenture Act.
- -------------
<PAGE>
17
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such TIA
Sections, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in any Security shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any Authenticating
Agent, any Paying Agent, any Securities Registrar and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of laws principles that would apply any other law. This Indenture is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 113. Legal Holidays.
--------------
<PAGE>
18
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or 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 any Security other than a provision in the Securities of
any series which specifically states that such provision shall apply in lieu of
this Section), payment of principal (or premium, if any) or interest, if any,
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date or sinking
fund payment date, or at the Stated Maturity or Maturity; provided that no
--------
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, until paid on such succeeding Business Day.
SECTION 114. No Recourse Against Others.
--------------------------
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting any of
the Securities waives and releases all such liability.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Securities shall be in substantially the forms as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the forms of Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Corporate Secretary
or an Assistant Corporate Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
<PAGE>
19
The definitive Securities shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA,
as Trustee
By__________________________________
Authorized Representative
SECTION 203. Securities Issuable in Global Form.
----------------------------------
When Securities of or within a series are issued in global form, as
specified as contemplated by Section 301, then, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 305. Subject
to the provisions of Section 303 and, if applicable, Section 305, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
305 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall
<PAGE>
20
be in writing but need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 308, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security the Holder of
such permanent Global Security.
SECTION 204. Form of Legend for Book-Entry Securities.
----------------------------------------
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
------------------------------------
<PAGE>
21
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. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (9) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) The title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) The aggregate principal amount of the Securities of the series,
the percentage of their principal amount at which the Securities of the
series shall be issued and the date or dates on which the principal of the
Securities of the series shall be payable or the method by which such date
or dates shall be determined or extended;
(3) The rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, and, if variable, the
method by which such rate or rates shall be determined;
(4) The date or dates from which any interest shall accrue or the
method by which such date or dates will be determined, the date or dates on
which any interest will be payable (including the Regular Record Dates for
such Interest Payment Dates) and the basis on which any interest will be
calculated if other than on the basis of a 360-day year of twelve 30-day
months;
(5) The place or places, if any, other than or in addition to New York
City, where the principal of (and premium, if any, on) and interest, if
any, on the Securities of the series will be payable, where any Securities
may be surrendered for registration of transfer, where the Securities of
the series may be surrendered for exchange and where notices or demands to
or upon the Company in respect of the Securities of the series may be
served;
(6) The period or periods within which, the price or prices at which,
and the other terms and conditions upon which, the Securities of the series
may be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option;
<PAGE>
22
(7) The obligation, if any, of the Company to redeem, purchase or
repay the Securities of the series, in whole or in part, pursuant to any
sinking fund or analogous provision or at the option of a holder thereof,
and the period or periods within which, the price or prices at which, and
the other terms and conditions upon which, the Securities of the series
will be so redeemed, purchased or repaid;
(8) Whether the amount of payments of principal of (and premium, if
any, on) and interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may, without limitation, be based on one or more
commodities, equity indices or other indices) and the manner in which such
amounts shall be determined;
(9) Any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to the Securities of
the series (which Events of Default or covenants may not be consistent with
the Events of Default or covenants set forth in the general provisions of
this Indenture);
(10) If other than the entire principal amount thereof, the portion of
the principal amount of the Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(11) Any provisions in modification of, in addition to or in lieu of
any provisions of Article Fourteen of this Indenture relating to defeasance
and covenant defeasance that shall be applicable to the Securities of the
series;
(12) Any provisions granting special rights to the Holders of the
Securities of the series upon the occurrence of such events as may be
specified;
(13) If other than the Trustee, the designation of any Paying Agent or
Security Registrar for the Securities of the series, and the designation of
any transfer or other agents or depositories for the Securities of the
series;
(14) Whether the Securities of the series shall be issuable initially
in temporary global form, whether any the Securities of the series is to be
issuable in permanent global form (a "Global Security") and, if so, whether
beneficial owners of interests in any Global Security may exchange such
interests for Definitive Securities of like tenor of any authorized form
and denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the Indenture, and, if the
Securities are to be issuable as a Global Security, the identity of the
depository for the Securities of the series;
<PAGE>
23
(15) The person to whom any interest on any Security shall be payable,
if other than the person in whose name the Securities of the series
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest or the manner in
which, any interest payable on a temporary Security issued in global form
shall be paid (if other than as described in Section 304);
(16) The denomination or denominations in which the Securities of the
series shall be issuable, if other than $1,000 or any integral multiple
thereof;
(17) Whether and under what circumstances the Company shall pay
Additional Amounts, as contemplated by Section 1008 of this Indenture, on
the Securities of the series to any Holder who is not a United States
person (including any modification of the definition of such term as
contained in this Indenture) in respect of any tax, assessment or
governmental charge and, if so, whether the Company shall have the option
to redeem the Securities of the series rather than pay such Additional
Amounts (and the terms of any such option); and
(18) Any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) of the Securities of the series
which may not be consistent with the other provisions of this Indenture.
All Securities of any one series shall be substantially identical
except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 303) and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. Not all Securities of any one series need
be issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
-------------
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. In the absence of any
such provisions, the Securities of such series, other than Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by any one
of the following: its Chairman, Chief Executive Officer, its President or one of
its Vice Presidents, and
<PAGE>
24
attested by one of its Vice Presidents or its Corporate Secretary or one of its
Assistant Corporate Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and make available for
delivery such Securities. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining terms of particular Securities of such series such as interest rate,
stated maturity, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(1) that the form or forms of such Securities have been established in
conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(3) that such Securities, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and made available for
delivery by the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and to
such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities;
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, and of the supplemental
indentures, if any, have been
<PAGE>
25
complied with and that authentication and delivery of such Securities and
the execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(5) that the Company has the corporate power to issue such Securities,
and all necessary corporate and shareholder action with respect to such
issuance has been taken; and
(6) that the issuance of such Securities will not contravene the
articles of incorporation or bylaws of the Company or result in any
violation of any of the terms or provisions of any law or regulation or of
any indenture, mortgage or other agreement known to such Counsel by which
the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, so long as the terms and provisions of such Securities are substantially
identical to the other Securities of such series, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to Section 301 or
the Company Order and Opinion of Counsel otherwise required pursuant to the
preceding two paragraphs prior to or at the time of issuance of each Security,
but such documents shall be delivered prior to or at the time of issuance of the
first Security of such series.
The Trustee shall not be required to authenticate and make available
for delivery any such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties, immunities,
protections, privileges, indemnities, and benefits under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 311 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Book-Entry Securities.
---------------------
<PAGE>
26
(a) The Securities of a series may be issuable in whole or in part in
the form of one or more Global Securities ("Book-Entry Securities") deposited
with, or on behalf of, a Depository (the "Depository"). In the case of Book-
Entry Securities, one or more Global Securities will be issued in a denomination
or aggregate denomination equal to the portion of the aggregate principal amount
of Outstanding Securities of the series to be represented by such Global
Security or Global Securities. Unless otherwise provided as contemplated by
Section 301, the additional provisions set forth in this Section 304 shall apply
to Book-Entry Securities.
(b) Book-Entry Securities will be deposited with, or on behalf of, the
Depository, and registered in the name of the Depository's nominee, for credit
to the respective accounts of institutions that have accounts with the
Depository or its nominee ("Participants"); provided that Book-Entry Securities
--------
purchased by Persons outside the United States may be credited to or through
accounts maintained at the Depository by or on behalf of Euroclear or Cedel.
The accounts to be credited will be designated by the underwriters or agents of
such Securities or, if such Securities are offered and sold directly by the
Company, by the Company. Ownership of beneficial interests in Book-Entry
Securities will be limited to Persons that may hold interests through
Participants.
Participants shall have no rights under this Indenture or any
indenture supplemental hereto with respect to any Book-Entry Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Book-Entry Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Book-Entry Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing in this Indenture or any such indenture supplemental shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between a Depository and its Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(c) Transfers of Book-Entry Securities shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in Book-Entry Securities may be
transferred or exchanged for Securities in fully registered, certificated form
("Definitive Securities") only if (i) the Depository notifies the Trustee in
writing that the Depository is no longer willing or able to continue as
depositary and a qualified successor depository is not appointed by the Company
within 90 days following such notice, (ii) the Company, at any time and in its
sole discretion, determines not to have any Securities of one or more series
represented by Global Securities or (iii) after the occurrence of an Event of
Default with respect to such Securities, a holder of Securities notifies the
Trustee in writing that it wishes to receive a Definitive Security and provides
to the Trustee evidence reasonably satisfactory to the Trustee of its ownership
interest in such Securities. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to physical delivery of
Definitive Securities equal in principal amount to such beneficial interest and
registered in its name.
<PAGE>
27
(d) In connection with any transfer or exchange of a portion of the
beneficial interest in any Book-Entry Security to beneficial owners pursuant to
paragraph (c) above, the Security Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Book-Entry
Security in an amount equal to the principal amount of the beneficial interest
in the Book-Entry Security to be transferred, and the Company shall execute, and
the Trustee shall authenticate and deliver, one or more Definitive Securities of
like tenor and principal amount of authorized denominations.
(e) In connection with the transfer of Book-Entry Securities as an
entirety to beneficial owners pursuant to paragraph (c) above, the Book-Entry
Securities shall be deemed to be surrendered to the Trustee for cancellation and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Book-Entry Securities, an equal aggregate principal
amount of Definitive Securities of like tenor of authorized denominations.
(f) The Holder of any Book-Entry Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the applicable Indenture or the Securities.
SECTION 305. Temporary Securities.
--------------------
Pending the preparation of Definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are typewritten, printed, lithographed,
engraved or otherwise produced by any combination of these methods, in any
authorized denomination, substantially of the tenor of the Definitive Securities
in lieu of which they are issued, in registered form and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
If temporary Securities of any series are issued, the Company will
cause Definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of Definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for Definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of Definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as Definitive Securities
of such series.
<PAGE>
28
Until exchanged in full as hereinabove provided, the temporary
Securities of any series, including temporary Global Securities (whether or not
issued as Book-Entry Securities as provided in Section 304), shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
SECTION 306. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in such office of the Trustee and in any other office or agency designated
pursuant to Section 1002 being herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby initially appointed "Security Registrar" for
the purpose of registering Securities and transfers of Securities as herein
provided.
Except as otherwise described in this Article Three, upon surrender
for registration of transfer of any Security of any series at the office or
agency of the Security Registrar in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, in each case, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of like type, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to pay all documentary, stamp, similar issue or transfer taxes or other
governmental charges that may be imposed in
<PAGE>
29
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 305, 906, 1107 or 1305 not involving any
transfer.
Neither the Company nor the Security Registrar shall be required (i)
to issue, register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before the day of the
selection for redemption of Securities of that series under Section 1103 or 1203
and ending at the close of business on the day of the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them and any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, or, in case any
such mutilated 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.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or an Authorized Officer of the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, 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 pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series, if any, issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of
<PAGE>
30
the Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section 307 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 308. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset.
- --------------
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest, if any, 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 such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
-------- -------
installment of interest, if any, on any Security may at the Company's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 310, to the address of
such Person as it appears on the Security Register or (ii) with the consent of
the Trustee (if the Trustee is then serving as Paying Agent) wire transfer to an
account located in the United States maintained by the payee.
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 shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in
Subsection (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money (except as otherwise specified pursuant to Section 301 for the
Securities of such series) 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
Subsection provided. Thereupon the
<PAGE>
31
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given in the manner provided in Section 106, 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 given, such Defaulted Interest shall be paid to the Persons in whose
name the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following
Subsection (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
(b) The provisions of this Section 308(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to an Optional Reset Date for such Note, which such notice
shall contain such information as may be required by the Trustee to transmit the
Reset Notice as hereinafter defined). Not later than 40 days prior to each
Optional Reset Date, the Trustee shall transmit, in the manner provided for in
Section 106, to the Holder of any such Security a notice (the "Reset Notice")
indicating whether the Company has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a "Subsequent Interest Period"), including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an
<PAGE>
32
interest rate (or a spread or spread multiplier used to calculate such interest
rate, if applicable) that is higher than the interest rate (or the spread or
spread multiplier, if applicable) provided for in the Reset Notice, for the
Subsequent Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 106, notice of such higher interest rate (or such higher
spread or spread multiplier, if applicable) to the Holder of such Security; and
such notice shall be irrevocable. All Securities with respect to which the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) is reset on an Optional Reset Date, and with
respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to
the next succeeding paragraph, will bear such higher interest rate (or such
higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day (or if such day is not a Business Day, on the
immediately succeeding Business Day) before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 306,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 309. Optional Extension of Stated Maturity.
-------------------------------------
The provisions of this Section 309 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of
<PAGE>
33
such Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security; and such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day (or if such day is not a Business Day, on the immediately succeeding
Business Day) before the Original Stated Maturity.
SECTION 310. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 306 and 308) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of (i) the
records relating to or payments made on account of any Participants or any
beneficial ownership interests of a Security in global form, (ii)for
maintaining, supervising or reviewing any records maintained by any Depository
or Participant or any other Person relating to such beneficial ownership
interests, (iii) the delivery or timeliness of delivery or any notice to any
beneficial owner of Securities which is required or permitted under the terms of
this Indenture or such Securities, (iv) the selection of the beneficial owners
to receive payments in the event of a partial redemption or repayment, or (v)
any consent given or other action taken by the Depository or other Holder of a
Security, as the registered holder thereof.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary, as a Holder, with respect to
such Global Security or impair, as between such Depositary and owners
<PAGE>
34
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security.
SECTION 311. Cancellation.
------------
All Securities surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange or for credit against
any current or future sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Securities so
delivered to the Trustee shall be promptly cancelled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its customary procedures,
unless by Company Order the Company shall direct that cancelled Securities be
returned to it.
SECTION 312. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee shall
use such "CUSIP" numbers in addition to serial numbers in notices of repurchase
as a convenience to Holders; provided that any such notice may state that no
--------
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a repurchase and that
reliance may be placed only on the serial or other identification numbers
printed on the Securities, and any such repurchase shall not be affected by any
defect in or omission of such "CUSIP" numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
<PAGE>
35
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall, upon Company Request, cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto) and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
<PAGE>
36
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Subsection (1)
of this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(1) default in the payment of any installment of interest upon any
Security of such series when it becomes due and payable, continued for 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of the Securities of such series and Article Twelve; or
(4) failure on the part of the Company to observe or perform any
other covenant or agreement contained in this Indenture (other than a
covenant or agreement
<PAGE>
37
included in this Indenture solely for the benefit of less than all series
of Securities or a covenant the default in the performance of which would
be covered by clause (7) below) for 60 days after written notice of such
failure, requiring the Company to remedy the same, has been given to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of outstanding Securities of
such series; or
(5) default under any indenture or instrument under which the Company
or any Restricted Subsidiary has at the time outstanding indebtedness for
borrowed money or guarantees thereof in any individual instance in excess
of $25,000,000 and, if not already matured in accordance with its terms,
such indebtedness has been accelerated and such acceleration is not
rescinded or annulled within 15 days after notice thereof has been given to
the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of outstanding Securities of
such series; provided that, if, prior to the entry of judgment in favor of
--------
the Trustee for payment of the Securities of such series, the default under
such indenture or instrument has been remedied or cured by the Company or
such Restricted Subsidiary, or waived by the holders of such indebtedness,
then the Event of Default under this Indenture will be deemed likewise to
have been remedied, cured or waived; or
(6) the entry of a decree or order by court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Bankruptcy Code or
any other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of the property of the Company, or
ordering the winding up or liquidation of the affairs of the Company, and
the continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(7) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by the Company to the institution of
bankruptcy or insolvency proceedings against it, or the filing by the
Company of a petition or answer or consent seeking reorganization or relief
under the Bankruptcy Code or any other applicable federal or state law, or
the consent by the Company to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of the
property of the Company of an assignment for the benefit of creditors, or
the admission by the Company in writing of its inability to pay its debts
generally as they become due; or
(8) any other Event of Default provided for the benefit of Securities
of such series.
<PAGE>
38
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If any Event of Default described in Section 501 with respect to
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that series
and all accrued interest thereon to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified portion thereof) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company, and the
Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay (except as otherwise specified pursuant to Section 301 for the
Securities of such series);
(1) all overdue interest, if any, on all Outstanding Securities of
that series,
(2) all unpaid principal of (and premium, if any, on) any Outstanding
Securities of that series which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal
(and premium, if any) at the rate or rates prescribed therefor in such
Securities,
(3) interest upon such overdue interest at the rate or rates
prescribed therefor in such Securities, and
(4) all sums paid or advanced by the Trustee for such series
hereunder and reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel;
(b) all Events of Default with respect to Securities of that series, other
than the non-payment of principal of (or premium, if any, on) or interest,
if any, on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
<PAGE>
39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to it for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, if any, and
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
under this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce such rights.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
<PAGE>
40
(i) to file and prove a claim for the whole amount of principal (and
premium, if any), or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be
specified in the terms of such series, 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 the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 606.
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 proposal,
plan of reorganization, arrangement, adjustment or composition or other similar
arrangement 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 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
- ----------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
<PAGE>
41
First: To the payment of all amounts due the Trustee under
-----
Section 606;
Second: To the payment of the amounts then due and unpaid for
------
principal of (and premium, if any) and interest, if any, on the Securities
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Company.
-----
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of an Event of Default
described in Section 501 in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
or more in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in respect of any Event of Default
described in Section 501, 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 Holders of Securities of the same series, in respect of such
Event of Default.
<PAGE>
42
SECTION 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest, if any, on, such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided in Section 307, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
------------------
<PAGE>
43
With respect to the Securities of any series, the Holders of not less
than 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, related to or arising under Section 501,
provided that in each case
- --------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability, and
(2) subject to the provisions of the TIA Section 315, the Trustee may
take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
Subject to Section 502, 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 or Event
of Default in Section 501 and its consequences, except a Default or Event of
Default,
(1) in respect of the payment of the principal of (or premium, if
any) or interest, if any, on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of Securities of
any series by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate
<PAGE>
44
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest on Securities of any series on
or after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date); provided that neither this
--------
Section 514 nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series of which the Trustee is deemed to have
knowledge pursuant to Section 602, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security Register, notice of
such default hereunder, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
- -------- -------
principal of (or premium, if any) or interest, if any, on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee or a
trust committee of directors and/or Authorized Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided further that in the case of
-------- -------
any default or breach of the character specified in Section 501(4) with respect
to Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Sections 315(a) through 315(d):
<PAGE>
45
(1) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) 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
<PAGE>
46
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(9) The Trustee shall not be liable for any error of judgment made in
good faith by an Authorized Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts.
(10) The Trustee is not required to take notice or deemed to have
notice of any Default or Event of Default hereunder, unless an Authorized
Officer of the Trustee has received notice in writing of such Default or
Event of Default from the Company or from the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of the series so
affected, and in absence of any such notice, the Trustee may conclusively
assume that no Default or Event of Default exists.
(11) The Trustee is not required to give any bond or surety with
respect to the performance of its duties or the exercise of its powers
under this Indenture.
(12) The Trustee's immunities and protections from liability and its
rights to compensation and indemnification in connection with the
performance of its duties under this Indenture shall extend to the
Trustee's officers, directors, agents and employees. Such immunities and
protections and right to indemnification, together with the Trustee's right
to compensation, shall survive the Trustee's resignation or removal and
final payment of the Securities.
(13) The Trustee shall have no responsibility for any information in
any offering memorandum or other disclosure material distributed with
respect to any series of Securities, and the Trustee shall have no
responsibility for compliance with any state or federal securities laws in
connection with the Securities, other than the filing of any documents
required to be filed by an indenture trustee pursuant to the Trust
Indenture Act.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
---------------------------------------------------
Securities.
- ----------
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof, except that the Trustee represents that it
is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements to be
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. 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 604. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made
<PAGE>
47
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or willful misconduct;
and
(3) to indemnify each of Trustee or any predecessor Trustee for, and
to hold it harmless against, any and all loss, damage, claim, liability or
expense including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in connection with any action taken, suffered or omitted by the
Trustee hereunder.
As security for the performance of the obligations of the Company
under this Section 606, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium, if any) or
interest, if any, on particular Securities.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Conflicting Interests. The Trustee shall comply with
---------------------
the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 608. Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests.
- ---------
There shall at all times be a Trustee hereunder qualified or to be
qualified under TIA Section 310(a)(1) and which, to the extent there is such an
institution eligible and willing to serve, shall have a combined capital and
surplus of at least $50,000,000. If such Trustee publishes or files reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 608, the combined capital and surplus of
the Trustee shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published or filed. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 608, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 609. 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 under Section 610.
(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
<PAGE>
48
successor Trustee required by Section 610 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may, at the expense of the Company, 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 not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may, at the expense of the Company,
petition a court of competent jurisdiction for the appointment of a successor
Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 514, the
Holder of any Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). 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
<PAGE>
49
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 Section 610, 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 hereinafter provided, any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to the Holders of Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 610. Acceptance of Appointment by Successor.
--------------------------------------
(a) Every successor Trustee appointed hereunder 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; provided, however, that the
-------- -------
retiring Trustee shall continue to be entitled to the benefit of Section 606;
but, on the request of the Company or the successor Trustee and after payment of
all amounts due and payable to such retiring Trustee pursuant to Section 606
(collectively, the "Trustee Payments"), such retiring Trustee shall, upon
payment of any additional charges therefor, 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 and after receipt
by the retiring Trustee of the Trustee Payments, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
<PAGE>
50
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee and after receipt by the
retiring Trustee of all Trustee Payments, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
Whenever there is a successor Trustee with respect to one or more (but less than
all) series of securities issued pursuant to this Indenture, the terms
"Indenture" and "Securities" shall have the meanings specified in the provisos
to the respective definitions of those terms in Section 101 which contemplate
such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
In case any of the Securities shall not have been authenticated by such
predecessor Trustee, any successor Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
Trustee. In all such cases such certificates shall have the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; provided, however, that the right to adopt the certificate of
-------- -------
authentication of any predecessor Trustee or to
<PAGE>
51
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 612. Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. 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. Any such appointment shall be evidenced
by an instrument in writing signed by an Authorized Officer of the Trustee, and
a copy of such instrument shall be promptly furnished to the Company. 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 reasonably acceptable to the Company and shall at
all times be a corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation publishes or
files reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published or filed. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect specified
in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
--------
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at
<PAGE>
52
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
SUNTRUST BANK,
as Trustee
By________________________________________________
as Authenticating Agent
By________________________________________________
Authorized Representative
SECTION 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
<PAGE>
53
SECTION 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that none of the Company or the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312.
SECTION 702. Reports by Trustee.
------------------
Within 60 days after April 1 of each year commencing with the first
April 1 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such April 1
if required by TIA Section 313(a).
SECTION 703. Reports by Company.
------------------
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, in the manner
<PAGE>
54
and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to Subsections (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets to, any Person, unless:
(1) Immediately after giving effect to such transaction, no Event of
Default (or event that with notice or lapse of time, or both, would become
an Event of Default) shall have happened and be continuing;
(2) The corporation or other entity formed by such consolidation or
into which the Company is merged, or the Person to which such properties
and assets will have been conveyed, transferred or leased, assumes the
Company's obligation as to the due and punctual payment of the principal of
(and premium, if any, on) and interest, if any, on all the Securities and
the performance and observance of every covenant to be performed by the
Company under the Indenture, and will be organized under the laws of the
United States, one of the states thereof or the District of Columbia; and
(3) The Company has delivered to the Trustee an Officers' Certificate
and Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
This Section shall only apply to a merger or consolidation in
which the Company is not the surviving entity and to conveyances, leases
and transfers by the Company as transferor or lessor.
SECTION 802. Rights and Duties of Successor Corporation.
------------------------------------------
In case of any such consolidation, merger, conveyance or transfer to
which Section 801 applies and upon any such assumption by the successor
corporation or Person, such successor corporation or Person shall succeed to and
be substituted for the Company with the same effect as if it had been named
herein as the Company and the predecessor corporation shall
<PAGE>
55
be relieved of any further obligation under this Indenture. Such successor
corporation or Person thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation or
Person, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor corporation or Person thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the Securities
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof. As used in this Section, "successor
corporation or Person" means the entity formed by such consolidation or into
which the Company is merged, or the Person which acquires by conveyance,
transfer or lease the properties and assets of the Company substantially as an
entirety, as the case may be, in each case as provided in Section 801.
SECTION 803. Securities to be Secured in Certain Events.
------------------------------------------
If, upon any such consolidation of the Company with, or merger of the
Company into, any other entity, or upon any conveyance, transfer or lease of the
property of the Company substantially as the entirety to any other Person, any
Principal Property of the Company or any Restricted Securities owned immediately
prior thereto, would become or be subject to any Lien, then unless such Lien
could be created pursuant to Section 1006 without equally and ratably securing
the Securities, the Company prior to or simultaneously with such transaction
will, as to such Principal Property or Restricted Securities, secure the
Securities Outstanding hereunder (together with, if the Company shall so
determine, any other Debt of the Company now existing or hereafter created which
is not subordinate to the Securities) equally and ratably with (or prior to) the
Debt which upon such is to become secured as to such Principal Property or
Restricted Securities by such Lien, or will cause such Securities to be so
secured; provided that for the purpose of providing such equal and ratable
--------
security the principal amount of Original Issue Discount Securities and Indexed
Securities shall mean that amount which, at the time of making such provision of
such equal and ratable security, would be due and payable pursuant to Section
502 and the terms of such Original Issue Discount Securities and Indexed
Securities upon a declaration of acceleration of the Maturity thereof, and the
extent of such equal and ratable security shall be adjusted, to the extent
permitted by law, as and when said amount changes over time pursuant to the
terms of such Original Issue Discount Securities and Indexed Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
<PAGE>
56
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are being included solely for the benefit of such series) or to
surrender any right or power herein or in the Securities conferred upon the
Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(4) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(5) to secure the Securities pursuant to the requirements of Section
803 or 1006 or otherwise; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(8) to close this Indenture with respect to the authentication and
delivery of additional series of Securities; or
<PAGE>
57
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action shall not
--------
adversely affect the interests of the Holders of Securities of any series
in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
--------
interests of the Holders of Securities of such series or any other series
of Securities in any material respect; or
(11) to make any other change that does not adversely affect the
rights of any Holder.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of such Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
one or more indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities under this Indenture; provided, however, that no such supplemental
-------- -------
indenture amendment or waiver shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security, or reduce the
principal amount thereof (or premium, if any) or the rate of interest, if
any, thereon, or change any obligation of the Company to pay Additional
Amounts as contemplated by Section 1008 (except as contemplated by Section
801(2) and permitted by Section 901(1)), or reduce the amount of the
principal of an Indexed Security or an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of any Holder of any Security, or change any Place
of Payment where, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be), or adversely affect
any right to convert or exchange any Security as may be provided pursuant
to Section 301 herein, or
<PAGE>
58
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section 902, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 602 hereof) 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, protections, privileges, indemnitees, benefits or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
<PAGE>
59
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
---------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any, on) and interest, if any, on the Securities of such series in accordance
with the terms of such Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for Securities of
such series an office or agency where Securities of such series may be presented
or surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served.
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address
<PAGE>
60
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as Places of Payment for each series
of Securities the office or agency of the Trustee in the Borough of Manhattan,
the City of New York, and initially appoints the Trustee at its Corporate Trust
Office in Atlanta, Georgia and at the office of its agent in the Borough of
Manhattan, the City of New York as Paying Agent in each such city as its agent
to receive all such presentations, surrenders, notices and demands.
SECTION 1003. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, before each due date of the
principal of (and premium, if any, on) and interest, if any, on any of the
Securities of such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum (except as otherwise specified pursuant to
Section 301 for the Securities of such) sufficient to pay the principal of (and
premium, if any, on) and interest, if any, on Securities of such Series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to or on each due date of the principal of
(and premium, if any, on) and interest, if any, on any Securities of such
series, deposit with the Paying Agent, a sum sufficient to pay the principal
(and premium, if any, on) or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) will promptly notify the
Trustee of its action or failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any, on) and interest, if any, on Securities of such series in
trust for the benefit of the
<PAGE>
61
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any, on) and interest, if any, on the
Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
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, on) and interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any, on) or
interest has become due and payable, shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
-------- -------
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Statement as to Compliance.
--------------------------
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, commencing with its fiscal year ending
after the date hereof, a brief certificate from its principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the compliance by the Company with all conditions and covenants
under this Indenture. For purposes of this Section 1004, such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
SECTION 1005. Corporate Existence.
-------------------
<PAGE>
62
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its respective
corporate existence, rights (charter and statutory) and franchises and the
respective corporate existence, rights (charter and statutory) and franchises of
its Subsidiaries; provided, however, that the Company shall not be required to
-------- -------
preserve any such existence, right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of it and its Subsidiaries as a whole and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Limitations on Liens.
--------------------
The Company covenants and agrees that it will not, and will not permit
any Restricted Subsidiary to, create, incur, issue or assume any Indebtedness
secured by any Lien on any Principal Property, or on shares of stock or
Indebtedness of any Restricted Subsidiary ("Restricted Securities"), without
making effective provision for the Outstanding Securities (except as otherwise
specified pursuant to Section 301 for the Securities of any series) to be
secured by the Lien equally and ratably with, or prior to, any and all
Indebtedness or obligations secured or to be secured thereby for so long as such
Indebtedness or obligations are so secured, except that the foregoing
restriction shall not apply to:
(1) Any Lien existing on the date of the first issuance of Securities
under the Indenture, including, but not limited to, Liens on property or
after-acquired property of the Company or its Subsidiaries under the United
Cities Indenture or the Greeley Indenture, or such other date as may be
specified in any supplemental indenture for any subsequent issuance of
Securities under this Indenture.
(2) Any Lien on any Principal Property or Restricted Securities of any
Person existing at the time such Person is merged or consolidated with or
into the Company or a Restricted Subsidiary, or becomes a Restricted
Subsidiary, or arising thereafter otherwise than in connection with the
borrowing of money arranged thereafter and pursuant to contractual
commitments entered into prior to and not in contemplation of such Person's
becoming a Restricted Subsidiary.
(3) Any Lien on any Principal Property existing at the time of
acquisition of such Principal Property by the Company or a Restricted
Subsidiary, whether or not assumed by the Company or such Restricted
Subsidiary, provided that no such Lien may extend to any other Principal
Property of the Company or any Restricted Subsidiary.
(4) Any Lien on any Principal Property (including any improvements on
an existing Principal Property) of the Company or any Restricted
Subsidiary, and any Lien on the shares of stock of a Restricted Subsidiary
that was formed or is held for the purpose of acquiring and holding such
Principal Property, in each case to secure all or any part of the
<PAGE>
63
cost of acquisition, development, operation, construction, alteration,
repair or improvement of all or any part of such Principal Property (or to
secure Indebtedness incurred by the Company or a Restricted Subsidiary for
the purpose of financing all or any part of such cost); provided that such
Lien is created prior to, at the time of, or within 12 months after the
latest of, the acquisition, completion of construction or improvement or
commencement of commercial operation of such Principal Property and
provided, further, that no such Lien may extend to any other Principal
Property of the Company or any Restricted Subsidiary, other than any
theretofore unimproved real property on which the Principal Property is so
constructed or developed or the Improvement is located.
(5) Any Lien on any Principal Property or Restricted Securities to
secure Indebtedness owing to the Company or to a Restricted Subsidiary.
(6) Any Lien in favor of governmental bodies to secure advances or
other payments pursuant to any contract or statute or to secure
Indebtedness incurred to finance the purchase price or cost of constructing
or improving the property subject to such Lien.
(7) Any Lien created in connection with a project financed with, and
created to secure, Non-Recourse Indebtedness.
(8) Any Lien required to be placed on any property of the Company or
its Subsidiaries pursuant to the provisions of the Greeley Indenture, the
United Cities Indenture, the Note Purchase Agreements or the 6 3/4%
Indenture.
(9) Any extension, renewal, substitution or replacement (or successive
extensions, renewals, substitutions or replacements), in whole or in part,
of any Lien referred to in the foregoing clauses (1) through (8), provided
that the Indebtedness secured thereby may not exceed the principal amount
of Indebtedness so secured at the time of such renewal or refunding, and
that such renewal or refunding Lien must be limited to all or any part of
the same property and improvements thereon, shares of stock or Indebtedness
that secured the Lien renewed or refunded.
(10) Any Lien not permitted above securing Indebtedness that, together
with the aggregate outstanding principal amount of other secured
Indebtedness that would otherwise be subject to the foregoing restrictions
(excluding Indebtedness secured by Liens permitted under the foregoing
exceptions) and the Attributable Debt in respect of all Sale and Leaseback
Transactions (not including Attributable Debt in respect of any such Sale
and Leaseback Transactions described in clause (iii) and (iv) of Section
1007) would not then exceed 20% of Consolidated Net Tangible Assets.
SECTION 1007. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
<PAGE>
64
The Company covenants and agrees that it will not, and will not permit
any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction
unless (i) the Company or a Restricted Subsidiary would be entitled, without
securing the Outstanding Securities, to incur Indebtedness secured by a Lien on
the Principal Property that is the subject of such Sale and Leaseback
Transaction pursuant to the provisions of Section 1006; (ii) the Attributable
Debt associated therewith would be in an amount permitted under Section
1006(10); (iii) the proceeds received in respect of the Principal Property so
sold and leased back at the time of entering into such Sale and Leaseback
Transaction are used for the business and operations of the Company or any
Subsidiary; or (iv) within 12 months after the sale or transfer, an amount equal
to the proceeds received in respect of the Principal Property so sold and leased
back at the time of entering into such Sale and Leaseback Transaction is applied
to the prepayment (other than mandatory prepayment pursuant to Section 1201) of
any Outstanding Securities or Funded Indebtedness that is owed by the Company or
a Restricted Subsidiary (other than Funded Indebtedness that is held by the
Company or any Restricted Subsidiary or Funded Indebtedness of the Company that
is subordinate in right of payment to any Outstanding Securities).
SECTION 1008. Additional Amounts.
------------------
If any Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any tax,
assessment or governmental charge ("Additional Amounts"), the Company shall pay
to the Holder of any Security of such series such Additional Amounts as may be
specified pursuant to Section 301. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (and premium, if any,
on) or interest, if any, on, or in respect of, any Security of a series or the
net proceeds received on the sale or exchange of any Security of a series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for by the terms of such series established pursuant to Section 301 to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made. Except as otherwise specified pursuant to
Section 301, if the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date, if any, with
respect to Securities of such series (or if the Securities of such series do not
bear interest or will not bear interest prior to Maturity, the first day on
which a payment of principal and any premium is made), and at least 10 days
prior to each date of payment of interest or principal and any premium if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company shall furnish the Trustee and the Paying
Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and the Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any, on) or interest, if any, on the
Securities of such series shall be made to Holders of Securities of such series
who are not United States persons without withholding for or on account of any
tax, assessment or other governmental charge described in the Securities of the
series. If any such
<PAGE>
65
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of such series and the Company shall pay to the Trustee or
the Paying Agent or Paying Agents the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal,
premium or interest with respect to any Securities of a series until it shall
have received a certificate advising otherwise and (ii) to make all payments of
principal, premium and interest with respect to the Securities of a series
without withholding or deductions until otherwise advised. The Company hereby
covenants and agrees to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability, cost or expense reasonably
incurred without negligence or willful misconduct on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 1009. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 803 or Sections 1005 to 1007,
inclusive, if before or after the time for such compliance the Holders of at
least a majority in principal amount of all Outstanding Securities of the series
affected, by Act of such Holders, waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company, the
<PAGE>
66
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 1103. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate and Opinion of Counsel evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
--------
however, that no such partial redemption shall reduce the portion of the
- -------
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
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 Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
--------------------
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall identify the Securities (including
CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
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67
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section
1106 will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money (except as otherwise specified pursuant to Section 301 for the Securities
of such series) sufficient to pay the Redemption Price of, and accrued interest,
if any, on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein (except as otherwise specified pursuant to Section 301
for the Securities of such series)(together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear
interest, and except to the extent provided below, shall be void. Upon
surrender of any such Security for
<PAGE>
68
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest on Securities
-------- -------
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
<PAGE>
69
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company and/or (2) receive
credit for the principal amount of Securities of such series which have been
previously delivered to the Trustee by the Company or for Securities of such
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of the same series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series; provided,
--------
however, that such Securities have not been previously so credited. Such
- -------
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date, for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash (except as otherwise specified
pursuant to Section 301 for the Securities of such series) and the portion
thereof, if any, which is to be satisfied by delivering or crediting Securities
of that series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having
<PAGE>
70
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) in cash a sum equal to
any interest that will accrue to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the written request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be promptly
reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
------------------------
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1302. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on
or before the Repayment Date it will deposit with the Trustee or with a Paying
<PAGE>
71
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money (except as otherwise
specified pursuant to Section 301 for the Securities of such series) sufficient
to pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest, if any, on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
------------------
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable.
- -------
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
except to the extent provided below, shall be void. Upon surrender of any such
Security for repayment in accordance with such provisions, together with all
coupons, if any, appertaining thereto maturing after the Repayment Date, the
principal amount of such Security so to be repaid shall be paid by the Company,
together with accrued
<PAGE>
72
interest, if any, to the Repayment Date; provided, however, that, in the case of
-------- -------
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 308.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part.
-------------------------
Upon surrender of any Security which is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of the
Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
- -----------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect defeasance
of the Securities of or within a series under Section 1402, or covenant
defeasance of the Securities of or within a series under Section 1403 in
accordance with the terms of such Securities and in accordance with this
Article.
SECTION 1402. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities, which shall thereafter
be deemed to be
<PAGE>
73
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities to receive, solely from the
trust fund described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and
interest, if any, on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 305, 306,
307, 1002 and 1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1008, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article
Fourteen. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section 1402 notwithstanding the prior exercise
of its option under Section 1403 with respect to such Securities.
SECTION 1403. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1403 with respect to any Securities of or within a
series, the Company shall be released from its obligations under Sections 1006
and 1007, and if specified pursuant to Section 301, its obligations under any
other covenant, with respect to such Outstanding Securities on and after the
date the conditions set forth in Section 1404 are satisfied (hereinafter,
"covenant defeasance"), and such Securities shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
Outstanding for financial accounting purposes). For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of reference in any such covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 501(4) or Section 501(8) or otherwise, as the
case may be, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series:
<PAGE>
74
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A) an
amount of money or (B) Government Obligations applicable to such Securities
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment of principal of and premium, if any, and
interest, if any, such Securities, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such
Outstanding Securities on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of
interest, if any, and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities; provided that the Trustee shall have been
--------
irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities.
Before such a deposit, the Company may give to the Trustee, in accordance
with Section 1102 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in accordance with
the terms of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (6) and (7) of Section 501 are concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period).
(3) No event or condition shall exist that would prevent the Company
from making payments of the principal of (and premium, if any) or interest
on the Securities on the date of such deposit or at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
<PAGE>
75
(5) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a result
of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(6) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(7) In the case of an election under either Section 1402 or 1403, the
Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1402 or 1403 was not made by the
Company with the intent of preferring the Holders of Securities of any
series over other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
SECTION 1405. Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions.
- ----------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or
<PAGE>
76
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities of all sums due
and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1402 or 1403, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1405; provided, however, that if the Company makes any payment of
-------- -------
principal of (or premium, if any) or interest, if any, on any such Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
This Indenture 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 Indenture.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
ATMOS ENERGY CORPORATION
By:_______________________________________________
Name:
Title:
SUNTRUST BANK, ATLANTA, as Trustee
By:_______________________________________________
Name:
Title:
<PAGE>
EXHIBIT 5.1
December 28, 1999
Atmos Energy Corporation
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
Re: Atmos Energy Corporation Public Offering
Ladies and Gentlemen:
As counsel for Atmos Energy Corporation, a Texas and Virginia corporation
(the "Company"), we are familiar with the Company's Registration Statement on
Form S-3 (as amended, the "Registration Statement") filed with the Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933 (as
amended, the "Act"), on the date hereof, with respect to the offering and
issuance from time to time by the Company of up to $500,000,000 aggregate
offering price of the following: (i) one or more series of its debt securities
(the "Debt Securities"), or (ii) shares of its Common Stock, no par value per
share (the "Common Stock"). All capitalized terms which are not defined herein
shall have the meanings assigned to them in the Registration Statement.
In connection with our examination of documents as hereinafter described,
we have assumed the genuineness of all signatures on, and the authenticity of,
all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies. With respect to
agreements and instruments executed by natural persons, we have assumed the
legal competency of such persons.
For the purpose of rendering this opinion, we have made such factual and
legal examination as we deemed necessary under the circumstances, and in that
connection we have examined, among other things, originals or copies of the
following:
<PAGE>
Atmos Energy Corporation
December 28, 1999
Page 2
(1) The Restated Articles of Incorporation of the Company, as amended to
date;
(2) The Bylaws of the Company, as amended to date;
(3) The form of Debt Securities Indenture filed as an exhibit to the
Registration Statement (as amended or supplemented in accordance with
the terms hereof, the "Indenture");
(4) Such records of the corporate proceedings of the Company, and such
other documents that we considered necessary or appropriate for the
purpose of rendering this opinion; and
(5) Such other certificates and assurances from public officials, officers
and representatives of the Company that we considered necessary or
appropriate for the purpose of rendering this opinion.
On the basis of the foregoing examination, and in reliance thereon, we are
of the opinion that (subject to compliance with the pertinent provisions of the
Act and, with respect to the Indenture and the Debt Securities, the Trust
Indenture Act of 1939, as amended, and to compliance with such securities or
"blue sky" laws of any jurisdiction as may be applicable):
1. When (a) the Debt Securities shall have been authorized, executed and
authenticated in accordance with the terms of the Indenture, (b) the Indenture
shall have been qualified under the Trust Indenture Act of 1939, duly executed
and delivered, and (c) the Debt Securities shall have been issued and sold as
described in the Registration Statement, and if in an underwritten offering, in
accordance with the terms and conditions of the applicable underwriting
agreement, and in a manner contemplated in the Registration Statement, including
the Prospectus Supplement relating to any such Debt Securities, the Debt
Securities will be duly authorized and valid and binding obligations of the
Company, subject to the effect of any bankruptcy, insolvency, reorganization,
moratorium, arrangement, or similar laws affecting the enforcement of creditors'
rights generally (including, without limitation, the effect of statutory or
other laws regarding fraudulent transfers or preferential transfers) and general
principles of equity, regardless of whether enforceability is considered in a
proceeding in equity or at law.
2. When the Common Stock shall have been authorized, issued and sold
within the limits and as described in the Registration Statement, and if in an
underwritten offering, in accordance with the terms and conditions of the
applicable underwriting agreement, and in a manner contemplated in the
Registration Statement, including the Prospectus Supplement relating to the
applicable offering of such Common Stock, the Common Stock will be validly
issued, fully paid and nonassessable.
<PAGE>
Atmos Energy Corporation
December 28, 1999
Page 3
This opinion is limited to the present laws of the States of Texas and New
York, the present federal laws of the United States, and to the present judicial
interpretations thereof and to the facts as they presently exist. We express no
opinion as to the effect of the laws of the State of Virginia on any such
issuance, payment and nonassessability of the Common Stock. We undertake no
obligation to advise you as a result of developments occurring after the date
hereof or as a result of facts or circumstances brought to our attention after
the date hereof.
This opinion may be filed as an exhibit to the Registration Statement.
Consent is also given to the reference to this firm under the caption "Legal
Matters" in the prospectus contained in the Registration Statement. In giving
this consent, we do not admit we are included in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the SEC promulgated thereunder.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
IFS/SPE
<PAGE>
EXHIBIT 5.2
December 28, 1999
Atmos Energy Corporation
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
Re: Atmos Energy Corporation Public Offering
Ladies and Gentlemen:
As counsel for Atmos Energy Corporation, a Texas and Virginia corporation
(the "Company"), we are familiar with the Company's Registration Statement on
Form S-3 (as amended, the "Registration Statement") filed with the Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933 (as
amended, the "Act"), on the date hereof, with respect to the offering and
issuance from time to time by the Company of up to $500,000,000 aggregate
offering price of the following: (i) one or more series of its debt securities,
or (ii) shares of its Common Stock, no par value per share (the "Common Stock").
All capitalized terms which are not defined herein shall have the meanings
assigned to them in the Registration Statement.
In connection with our examination of documents as hereinafter described,
we have assumed the genuineness of all signatures on, and the authenticity of,
all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies. With respect to agreements
and instruments executed by natural persons, we have assumed the legal
competency of such persons.
For the purpose of rendering this opinion, we have made such factual and
legal examination as we deemed necessary under the circumstances, and in that
connection we have examined, among other things, originals or copies of the
following:
(1) The Restated Articles of Incorporation of the Company, as amended
to date;
(2) The Bylaws of the Company, as amended to date;
<PAGE>
Atmos Energy Corporation
December 28, 1999
Page 2
(3) Such records of the corporate proceedings of the Company, and such
other documents that we considered necessary or appropriate for the
purpose of rendering this opinion; and
(4) Such other certificates and assurances from public officials,
officers and representatives of the Company that we considered
necessary or appropriate for the purpose of rendering this opinion.
On the basis of the foregoing examination, and in reliance thereon, we are
of the opinion that (subject to compliance with the pertinent provisions of the
Act, and to compliance with such securities or "blue sky" laws of any
jurisdiction as may be applicable):
When the Common Stock shall have been authorized, issued and sold within
the limits and as described in the Registration Statement, and if in an
underwritten offering, in accordance with the terms and conditions of the
applicable underwriting agreement, and in a manner contemplated in the
Registration Statement, including the Prospectus Supplement relating to the
applicable offering of such Common Stock, the Common Stock will be validly
issued, fully paid and nonassessable.
This opinion is limited to the present laws of the State of Virginia, the
present federal laws of the United States, and to the present judicial
interpretations thereof and to the facts as they presently exist. We express no
opinion as to the effect of the laws of the State of Texas on any such issuance,
payment and nonassessability of the Common Stock. We undertake no obligation to
advise you as a result of developments occurring after the date hereof or as a
result of facts or circumstances brought to our attention after the date hereof.
This opinion may be filed as an exhibit to the Registration Statement.
Consent is also given to the reference to this firm under the caption "Legal
Matters" in the prospectus contained in the Registration Statement. In giving
this consent, we do not admit we are included in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the SEC promulgated thereunder.
Very truly yours,
HUNTON & WILLIAMS
<PAGE>
EXHIBIT 12.1
Atmos Energy Corporation
Computation of Ratio of Earnings to Fixed Charges
(Dollar amounts in Thousands)
<TABLE>
<CAPTION>
Year ended September 30,
1999 1998 1997 1996 1995
-------- --------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Income from continuing operations before
provision for income taxes per statement
of income $ 27,299 $ 87,071 $ 38,136 $ 64,467 $ 45,352
Add:
Portion of rents representative of the
interest factor 3,520 3,050 3,507 3,237 3,058
Interest on debt & amort. of debt expense 37,063 35,579 33,595 31,677 30,186
-------- --------- -------- -------- --------
Income as adjutsed $ 67,882 $ 125,700 $ 75,238 $ 99,381 $ 78,596
======== ========= ======== ======== ========
Fixed charges:
Interest on debt & amort. of debt expense (1) 37,063 35,579 33,595 31,677 30,186
Capitalized interest (2) 3,724 4,132 1,570 376 775
Rents 10,560 9,149 10,522 9,710 9,175
Portion of rents representative of the
interest factor (3) 3,520 3,050 3,507 3,237 3,058
-------- --------- -------- -------- --------
Fixed charges (1)+(2)+(3) $ 44,307 $ 42,761 $ 38,672 $ 35,290 $ 34,019
======== ========= ======== ======== ========
Ratio of earnings to fixed charges 1.53 2.94 1.95 2.82 2.31
======== ========= ======== ======== ========
</TABLE>
<PAGE>
Exhibit 23.3
Consent of Independent Auditors
-------------------------------
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Atmos Energy
Corporation for $500,000,000 of debt securities and common stock and to the
incorporation by reference therein of our reports dated November 9, 1999, with
respect to the consolidated financial statements of Atmos Energy Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
September 30, 1999 and the related financial statement schedule included
therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
December 23, 1999
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
___________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
-----
___________________
SUNTRUST BANK, ATLANTA
(Exact name of trustee as specified in its charter)
58-0466330
(I.R.S. employer identification no.)
25 Park Place, N.E.
Atlanta, Georgia 30303
(Address of principal executive offices) (Zip Code)
___________________
Kristine Prall
SunTrust Bank, Atlanta
25 Park Place, N.E.
24th Floor
Atlanta, Georgia 30303
(404) 588-7296
(Name, address and telephone number of agent for service)
ATMOS ENERGY CORPORATION
(Exact name of obligor as specified in its charter)
Texas and Virginia 75-1743247
(State or other jurisdiction of (IRS employer
incorporation or organization) identification no.)
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
(Address of principal executive offices) (Zip Code)
_________________
Debt Securities*
(Title of the indenture securities)
- ------------
*Applicable to all securities registered pursuant to the delayed offering
registration statement.
<PAGE>
1. General information.
(a) Name and address of each examining or supervising authority to which
it is subject.
Department of Banking and Finance
State of Georgia
Atlanta, Georgia
Federal Reserve Bank of Atlanta
104 Marietta Street, N.W.
Atlanta, Georgia
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
None.
3. Voting Securities of the Trustee.
Not applicable.
4. Trusteeships under Other Indentures.
Not applicable.
5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
Not applicable.
6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Not applicable.
7. Voting Securities of the Trustee Owned by Underwriters or their Officials.
Not applicable.
-1-
<PAGE>
8. Securities of the Obligor Owned or Held by the Trustee.
Not applicable.
9. Securities of Underwriters Owned or held by the Trustee.
Not applicable.
10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
Not applicable.
11. Ownership or Holdings by the Trustee of any Securities or a Person Owning
50 Percent or More of the Voting Securities of the Obligor.
Not applicable.
12. Indebtedness of the Obligor to the Trustee.
Not applicable.
13. Defaults by the Obligor.
(a) Whether there is or has been a default with respect to the securities
under this indenture.
There is not and has not been any such default.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is trustee for
more than one outstanding series of securities under the indenture,
state whether there has been a default under any such indenture or
series.
There has not been any such default.
14. Affiliations with the Underwriters.
Not applicable.
-2-
<PAGE>
15. Foreign Trustee.
Not applicable.
16. List of Exhibits.
The additional exhibits listed below are filed herewith; exhibits, if any,
identified in parentheses are on file with the Commission and are incorporated
herein by reference as exhibits hereto pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939, as amended, and Rule 24 of the Commission's Rules of
Practice.
Exhibit
Number
- ------
1 A copy of the Articles of Amendment and Restated Articles of Incorporation
as now in effect. (Exhibit 1 to Form T-1, Registration No. 333-25463.)
2 A copy of the certificate of authority of the Trustee to commence business.
(Included in Exhibit 1.)
3 A copy of the authorization of the Trustee to exercise trust powers.
(Included in Exhibit 1.)
4 By-laws of the Trustee. (Included in Exhibit 4 to Form T-1, Registration
No. 333-25463.)
5 Not applicable.
6 Consent of the trustee required by Section 321(b) of the Trust Indenture
Act of 1939, as amended.
7 Latest report of condition of the Trustee published pursuant to law or the
requirements of its supervising or examining authority as of the close of
business on September 30, 1999.
8 Not applicable.
9 Not applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, SunTrust Bank, Atlanta, a banking corporation organized and existing
under the laws of the State of Georgia, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Atlanta and the State of Georgia,
on the 28th of December, 1999.
SUNTRUST BANK, ATLANTA
By: /s/ Kristine Prall
---------------------------
Trust Officer
-4-
<PAGE>
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939 in connection with the proposed issuance of Atmos Energy Corporation
Debt Securities to be issued under the Indenture, SunTrust Bank, Atlanta hereby
consents that reports of examinations by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
SUNTRUST BANK, ATLANTA
By: /s/ Kristine Prall
-----------------------
Trust Officer
<PAGE>
EXHIBIT 7 FORM T-1
LATEST REPORT OF CONDITION
OF
SUNTRUST BANK, ATLANTA
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Income
ATLANTA , GA 30303 for the period
Certificate Number: 867 January 1, 1999 - September 30, 1999
============================================================================
Consolidated Report of Income
for the Period January 1, 1999 - September 30, 1999
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
Schedule RI - Income Statement
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
1. Interest income:
1.a. Interest and fee income on loans:
1.a.1. In domestic offices:
1.a.1.a. Loans secured by real estate 170,688
1.a.1.b. Loans to depository institutions 8,093
1.a.1.c. Loans to finance agricultural production and other loans to 1,550
farmers
1.a.1.d. Commercial and industrial loans 387,212
1.a.1.e. Acceptances of other banks 0
1.a.1.f. Loans to individuals for household, family, and other
personal expenditures:
1.a.1.f.1. Credit cards and related plans 2,031
1.a.1.f.2. Other 52,329
1.a.1.g. Loans to foreign governments and official institutions 633
1.a.1.h. Obligations (other than securities and leases) of states
and political subdivisions in the U.S.:
1.a.1.h.1. Taxable obligations 1,439
1.a.1.h.2. Tax-exempt obligations 1,906
1.a.1.i. All other loans in domestic offices 25,833
1.a.2. In foreign offices, Edge and Agreement subsidiaries, and IBFs 732
1.b. Income from lease financing receivables:
1.b.1. Taxable leases 25,437
1.b.2. Tax-exempt leases 0
1.c. Interest income on balances due from depository
institutions:
1.c.1. In domestic offices 187
1.c.2. In foreign offices, Edge and Agreement subsidiaries, and IBFs 286
1.d. Interest and dividend income on securities:
1.d.1. U.S. Treasury securities and U.S. Government agency 65,956
obligations (including mortgage-backed securities issued
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
or guaranteed by FNMA, FHLMC, or GNMA)
1.d.2. Securities issued by states and political subdivisions in
the U.S.:
1.d.2.a. Taxable securities 547
1.d.2.b. Tax-exempt securities 3,071
1.d.3. Other domestic debt securities (including mortgage-backed 782
securities not issued or guaranteed by FNMA, FHLMC, or
GNMA)
1.d.4. Foreign debt securities 0
1.d.5. Equity securities (including investments in mutual funds) 14,403
1.e. Interest income from trading assets 104
1.f. Interest income on federal funds sold and securities 64,660
purchased under agreements to resell
1.g. Total interest income (sum of items 1.a through 1.f) 827,879
Year-to-date
2. Interest expense:
2.a. Interest on deposits:
2.a.1. Interest on deposits in domestic offices:
2.a.1.a. Transaction accounts (NOW accounts, ATS accounts, and 6,310
telephone and preauthorized transfer accounts)
2.a.1.b. Nontransaction accounts:
2.a.1.b.1. Money market deposit accounts (MMDAs) 59,267
2.a.1.b.2. Other savings deposits 2,325
2.a.1.b.3. Time deposits of $100,000 or more 7,685
2.a.1.b.4. Time deposits of less than $100,000 21,096
2.a.2. Interest on deposits in foreign offices, Edge and Agreement 139,433
subsidiaries, and IBFs
2.b. Expense of federal funds purchased and securities sold under 164,320
agreements to repurchase
2.c. Interest on demand notes issued to the U.S. Treasury, trading 15,099
liabilities, and other borrowed money
2.d. Not applicable
2.e. Interest on subordinated notes and debentures 10,138
2.f. Total interest expense (sum of items 2.a through 2.e) 425,673
3. Net interest income (item 1.g minus 2.f) 402,206
4. Provisions:
4.a. Provision for credit losses 10,263
4.b. Provision for allocated transfer risk 0
5. Noninterest income:
5.a. Income from fiduciary activities 94,857
5.b. Service charges on deposit accounts in domestic offices 48,641
5.c. Trading revenue (must equal Schedule RI, sum of 0
Memorandum items 8.a through 8.d)
5.d.-e. Not applicable
</TABLE>
-3-
<PAGE>
<TABLE>
<S> <C> <C>
5.f. Other noninterest income:
5.f.1. Other fee income 83,021
5.f.2. All other noninterest income 12,041
5.g. Total noninterest income (sum of items 5.a through 5.f) 238,560
6.a. Realized gains (losses) on held-to-maturity securities 0
6.b. Realized gains (losses) on available-for-sale securities 1,796
7. Noninterest expense:
7.a. Salaries and employee benefits 120,781
7.b. Expenses of premises and fixed assets (net of rental income) 25,713
(excluding salaries and employment benefits and mortgage
interest)
7.c. Other noninterest expense 196,315
7.d. Total noninterest expense (sum of 7.a Through 7.c) 342,809
8. Income (loss) before income taxes and extraordinary items 289,490
and other adjustments (item 3 plus or minus items 4.a, 4.b,
5.g, 6.a, 6.b, and 7.d)
9. Applicable income taxes (on item 8) 101,187
10. Income (loss) before extraordinary items and other 188,303
adjustments (item 8 minus 9)
11. Extraordinary items and other adjustments, net of income 0
taxes
12. Net income (loss) (sum of items 10 and 11) 188,303
<CAPTION>
=================================================================================================
Memoranda
Year-to-date
Dollar
Amounts in
Thousands
<S> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, 805
loans, and leases acquired after August 7, 1986, that is not
deductible for federal income tax purposes
2. Income from the sale and servicing of mutual funds and 8,640
annuities in domestic offices (included in Schedule RI, item
8)
3.-4. Not applicable
Number
5. Number of full-time equivalent employees at end of current 2,974
period (round to the nearest whole number)
6. Not applicable
7. If the reporting bank has restated its balance sheet as a 0
result of applying push down accounting this calendar year,
report the date of the bank's acquisition (For example, a
bank acquired on June 1, 1998, would report 19980601.)
8. Trading revenue (from cash instruments and off-balance
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C> <C>
sheet derivative instruments) (sum of Memorandum
items 8.a through 8.d must equal Schedule RI, item 5.c):
8.a. Interest rate exposures 0
8.b. Foreign exchange exposures 0
8.c. Equity security and index exposures 0
8.d. Commodity and other exposures 0
9. Impact on income of off-balance sheet derivatives held
for purposes other than trading:
9.a. Net increase (decrease) to interest income -2,978
9.b. Net (increase) decrease to interest expense 5,985
9.c. Other (noninterest) allocations 0
10. Credit losses on off-balance sheet derivatives (see 0
instructions)
YES/NO
11. Does the reporting bank have a Subchapter S election in No
effect for federal income tax purposes for the current tax
year?
12. Deferred portion of total applicable income taxes included in N/A
Schedule RI, items 9 and 11 (to be reported with the
December Report of Income)
</TABLE>
-5-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Income
ATLANTA , GA 30303 for the period
Certificate Number: 867 January 1, 1999 - September 30, 1999
=============================================================================
Schedule RI-A--Changes in Equity Capital
Indicate decreases and losses in parentheses.
<TABLE>
<C> <S> <C>
Dollar Amounts in Thousands
1. Total equity capital originally reported in the December 31, 1998, 2,365,068
Reports of Condition and Income
2. Equity capital adjustments from amended Reports of Income, net 0
3. Amended balance end of previous calendar year (sum of items 1 2,365,068
and 2)
4. Net income (loss) (must equal Schedule RI, item 12) 188,303
5. Sale, conversion, acquisition, or retirement of capital stock, net 0
6. Changes incident to business combinations, net 0
7. LESS: Cash dividends declared on preferred stock 0
8. LESS: Cash dividends declared on common stock 63,750
9. Cumulative effect of changes in accounting principles from prior 0
years (see instructions for this schedule)
10. Corrections of material accounting errors from prior years (see 0
instructions for this schedule)
11.a. Change in net unrealized holding gains (losses) on available-for-sale securities -305,771
11.b. Change in accumulated net gains (losses) on cash flow 0
hedges.
12. Foreign currency translation adjustments 0
13. Other transactions with parent holding company (not included in 0
items 5, 7, or 8 above)
14. Total equity capital end of current period (sum of items 3 through 2,183,850
13) (must equal Schedule RC, item 28)
</TABLE>
-6-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Income
ATLANTA , GA 30303 for the period
Certificate Number: 867 January 1, 1999 - September 30, 1999
==============================================================================
Schedule RI-B--Charge-offs and Recoveries on Loans and Leases
and Changes in Allowance for Credit Losses
Part I. Charge-offs and Recoveries on Loans and Leases
Part I excludes charge-offs and recoveries through (Column A) (Column B)
the allocated transfer risk reserve. Charge-offs Recoveries
Calendar-year-to-date
Dollar Amounts in Thousands
1. Loans secured by real estate:
1.a. To U.S. addressees (domicile) 29 98
1.b. To non-U.S. addressees (domicile) 0 0
2. Loans to depository institutions and
acceptances of other banks:
2.a. To U.S. banks and other U.S. depository 0 0
institutions
2.b. To foreign banks 0 0
3. Loans to finance agricultural production and 0 0
other
loans to farmers
4. Commercial and industrial loans:
4.a. To U.S. addressees (domicile) 19,277 2,392
4.b. To non-U.S. addressees (domicile) 97 14
5. Loans to individuals for household, family, and
other personal expenditures:
5.a. Credit cards and related plans 486 242
5.b. Other (includes single payment, installment, 2,780 2,384
and all student loans)
6. Loans to foreign governments and official 0 0
institutions
7. All other loans 895 319
8. Lease financing receivables:
8.a. Of U.S. addressees (domicile) 400 198
8.b. Of non-U.S. addressees (domicile) 0 0
9. Total (sum of items 1 through 8) 23,964 5,647
-7-
<PAGE>
================================================================================
Memoranda
(Column A) (Column B)
Charge-offs Recoveries
Calendar-year-to-date
Dollar Amounts in Thousands
1.-3. Not applicable
4. Loans to finance commercial real estate,
construction, and land development activities (not
secured by real estate) included in Schedule RI-B,
part I, items 4 and 7, above 0
5. Loans secured by real estate in domestic offices
(included in Schedule RI-B, part I, item 1, above):
5.a. Construction and land development 0
5.b. Secured by farmland 0
5.c. Secured by 1-4 family residential properties:
5.c.1. Revolving, open-end loans secured by 1-4 family
residential properties and extended under lines of
credit 0
5.c.2. All other loans secured by 1-4 family residential
properties 25 5
5.d. Secured by multifamily (5 or more) residential
properties 0
5.e. Secured by nonfarm nonresidential properties 4 4
============================================================================
Part II. Changes in Allowance for Credit Losses
Dollar Amounts in Thousands
1. Balance originally reported in the December 31, 1998,
Reports of Condition and Income 138,028
2. Recoveries (must equal or exceed part I, item 9, column B
above) 5,647
3. LESS: Charge-offs (must equal or exceed part I, item 9,
column A above) 23,964
4. Provision for credit losses (must equal Schedule RI,
item 4.a) 10,263
5. Adjustments (see instructions for this schedule) 0
6. Balance end of current period (sum of items 1 through 5)
(must equal or exceed Schedule RC, item 4.b) 129,974
-8-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Income
ATLANTA , GA 30303 for the period
Certificate Number: 867 January 1, 1999 - September 30, 1999
===============================================================================
Schedule RI-D--Income from International Operations
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs
where international operations account for more than 10 percent of total
revenues, total assets, or net income.
Part I. Estimated Income from International Operations
<TABLE>
<CAPTION>
Year-to-
date
Dollar Amounts in Thousands
<S> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and
Agreement subsidiaries, and IBFs:
1.a. Interest income booked 0
1.b. Interest expense booked 0
1.c. Net interest income booked at foreign offices, Edge and Agreement 0
subsidiaries, and IBFs (item 1.a minus 1.b)
2. Adjustments for booking location of international operations:
2.a. Net interest income attributable to international operations booked at 0
domestic offices
2.b. Net interest income attributable to domestic business booked at foreign 0
offices
2.c. Net booking location adjustment (item 2.a minus 2.b) 0
3. Noninterest income and expense attributable to international
operations:
3.a. Noninterest income attributable to international operations 0
3.b. Provision for loan and lease losses attributable to international 0
operations
3.c. Other noninterest expense attributable to international operations 0
3.d. Net noninterest income (expense) attributable to international operations 0
(item 3.a minus 3.b and 3.c)
4. Estimated pretax income attributable to international operations before 0
capital allocation adjustment (sum of items 1.c, 2.c, and 3.d)
5. Adjustment to pretax income for internal allocations to international 0
operations to reflect the effects of equity capital on overall bank funding
costs
6. Estimated pretax income attributable to international operations after 0
capital allocation adjustment (sum of items 4 and 5)
7. Income taxes attributable to income from international operations as 0
estimated in item 6
</TABLE>
-9-
<PAGE>
<TABLE>
<S> <C> <C>
8. Estimated net income attributable to international operations
(item 6 minus 7) 0
<CAPTION>
Memoranda
Dollar Amounts in Thousands
<S> <C> <C>
1. Intracompany interest income included in item 1.a above 0
2. Intracompany interest expense included in 1.b above 0
<CAPTION>
Part II. Supplementary Details on Income from International Operations Required
by the Departments of Commerce and Treasury for Purposes of the U.S.
International Accounts and the U.S. National Income and Product Accounts
Year-to-date
Dollar Amounts in Thousands
<S> <C> <C>
1. Interest income booked at IBFs 0
2. Interest expense booked at IBFs 0
3. Noninterest income attributable to international operations booked
at domestic offices (excluding IBFs):
3.a. Gains (losses) and extraordinary items 0
3.b. Fees and other noninterest income 0
4. Provision for loan and lease losses attributable to international 0
operations booked at domestic offices (excluding IBFs)
5. Other noninterest expense attributable to international operations 0
booked at domestic offices (excluding IBFs)
</TABLE>
-10-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Income
ATLANTA , GA 30303 for the period
Certificate Number: 867 January 1, 1999 - September 30, 1999
================================================================================
Schedule RI-E--Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedule RI-A and RI-B, all extraordinary items and
other adjustments in Schedule RI, and all significant items of other noninterest
income and other noninterest expense in Schedule RI. (See instructions for
details.)
<TABLE>
<CAPTION>
Year-to-
date
Dollar Amounts in Thousands
<S> <C> <C>
1. All other noninterest income (from Schedule RI, item 5.f.(2))
Report amounts that exceed 10% of Schedule RI, item 5.f.(2):
1.a. Net gains (losses) on other real estate owned 0
1.b. Net gains (losses) on sales of loans 1,308
1.c. Net gains (losses) on sales of premises and fixed assets
Itemize and describe the three largest other amounts that exceed
10% of Schedule RI, item 5.f.(2): 0
1.d. FOREIGN EXCHANGE - GAIN/LOSS 4,662
1.e. OTHER INCOME 1,995
1.f. SALE OF CUSTOMER CHECK 1,755
2. Other noninterest expense (from Schedule RI, item 7.c):
2.a. Amortization expense of intangible assets 494
Report amounts that exceed 10% of Schedule RI, item 7.c:
2.b. Net (gains) losses on other real estate owned 0
2.c. Net (gains) losses on sales of loans 0
2.d. Net (gains) losses on sales of premises and fixed assets 0
Itemize and describe the three largest other amounts that exceed 10% of Schedule RI,
item 7.c:
2.e. I/C DATA PROCESSING FEE 66,595
2.f. I/C OTHER SERVICE EXPENSE - NB NI ST 26,213
2.g. 0
3. Extraordinary items and other adjustments and applicable income tax effect (from
Schedule RI, item 11) (itemize and describe all extraordinary items and other
adjustments):
3.a.1. 0
3.a.2. Applicable income tax effect 0
3.b.1. 0
</TABLE>
-11-
<PAGE>
<TABLE>
<S> <C> <C>
3.b.2. Applicable income tax effect 0
3.c.1. 0
3.c.2. Applicable income tax effect 0
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A, item 2)
(itemize and describe all adjustments):
4.a. 0
4.b. 0
5. Cumulative effect of changes in accounting principles from prior years (from Schedule
RI-A, item 9) (itemize and describe all changes in accounting principles):
5.a. 0
5.b. 0
6. Corrections of material accounting errors from prior years (from Schedule RI-A, item 10)
(itemize and describe all corrections):
6.a. 0
6.b. 0
7. Other transactions with parent holding company (from Schedule RI-A, item 13) (itemize
and describe all such transactions):
7.a. 0
7.b. 0
8. Adjustments to allowance for credit losses (from Schedule RI-B, part II, item 5)
(itemize and describe all adjustments):
8.a. 0
8.b. 0
9. Other explanations (the space below is provided for the bank to briefly describe, at its
option, any other significant items affecting the Report of Income):
No Comment
</TABLE>
-12-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for September 30, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
<CAPTION>
Schedule RC--Balance Sheet
Dollar Amounts in Thousands
ASSETS
<S> <C> <C>
1. Cash and balances due from depository institutions (from
Schedule RC-A):
1.a. Noninterest-bearing balances and currency and coin 838,892
1.b. Interest-bearing balances 30,562
2. Securities:
2.a. Held-to-maturity securities (from Schedule RC-B, column A) 0
2.b. Available-for-sale securities (from Schedule RC-B, column D) 3,107,743
3. Federal funds sold and securities purchased under agreements to
resell 2,393,095
4. Loans and lease financing receivables:
4.a. Loans and leases, net of unearned income (from Schedule RC-C) 13,691,817
4.b. LESS: Allowance for loan and lease losses 129,974
4.c. LESS: Allocated transfer risk reserve 0
4.d. Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b and 4.c) 13,561,843
5. Trading assets (from Schedule RC-D) 49,674
6. Premises and fixed assets (including capitalized leases) 102,129
7. Other real estate owned (from Schedule RC-M) 760
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 12,664
9. Customers' liability to this bank on acceptances outstanding 348,157
10. Intangible assets (from Schedule RC-M) 13,827
11. Other assets (from Schedule RC-F) 241,646
12. Total assets (sum of items 1 through 11) 20,700,992
LIABILITIES
13. Deposits:
13.a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I) 7,116,915
</TABLE>
-13-
<PAGE>
<TABLE>
<S> <C> <C>
13.a.1. Noninterest-bearing 2,911,893
13.a.2. Interest-bearing 4,205,022
13.b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II) 4,501,562
13.b.1. Noninterest-bearing 0
13.b.2. Interest-bearing 4,501,562
14. Federal funds purchased and securities sold under agreements to
repurchase 4,059,794
15.a. Demand notes issued to the U.S. Treasury 0
15.b. Trading liabilities (from Schedule RC-D) 0
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
16.a. With a remaining maturity of one year or less 168,710
16.b. With a remaining maturity of more than one year through three
years 250,000
16.c. With a remaining maturity of more than three years 752,689
17. Not applicable
18. Bank's liability on acceptances executed and outstanding 348,157
19. Subordinated notes and debentures 250,000
20. Other liabilities (from Schedule RC-G) 1,069,315
21. Total liabilities (sum of lines 13 through 20) 18,517,142
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock 21,601
25. Surplus (exclude all surplus related to preferred stock) 703,406
26.a. Undivided profits and capital reserves 723,440
26.b. Net unrealized holding gains (losses) on available-for-sale
securities 735,403
26.c. Accumulated net gains (losses) on cash flow hedges 0
27. Cumulative foreign currency translation adjustments 0
28. Total equity capital (sum of items 23 through 27) 2,183,850
29. Total liabilities and equity capital (sum of items 21 and 28) 20,700,992
</TABLE>
-14-
<PAGE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition. Number
1. Indicate in the box at the right the number of the statement below N/A
that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1998 N/A
<S> <C>
1= Independent audit of the bank conducted 4= Directors' examination of the bank performed
in accordance with generally accepted by other external auditors (may be required by
auditing standards by a certified public state chartering authority)
accounting firm which submits a report on
the bank
2= Independent audit of the bank's parent 5= Review of the bank's financial statements by
holding company conducted in accordance external auditors
with generally accepted auditing standards 6= Compilation of the bank's financial statements
by a certified public accounting firm by external auditors
which submits a report on the consolidated
holding company (but not on the bank
separately)
3= Directors' examination of the bank 7= Other audit procedures (excluding tax
conducted in accordance with generally preparation work)
accepted auditing standards by a certified 8= No external audit work
public accounting firm (may be required
by state chartering authority)
</TABLE>
-15-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-A--Cash and Balances Due From Depository Institutions
Exclude assets held for trading.
<TABLE>
<CAPTION>
(Column (Column
A) B)
Consolida Domestic
ted Bank Offices
Dollar Amounts in Thousands
<S> <C> <C> <C>
1. Cash items in process of collection, unposted
debits, and currency and coin: 704,759
1.a. Cash items in process of collection and unposted debits 576,040
1.b. Currency and coin 128,719
2. Balances due from depository institutions in the
U.S.: 47,228
2.a. U.S. branches and agencies of foreign banks (including 0
their IBFs)
2.b. Other commercial banks in the U.S. and other
depository institutions in the U.S. (including their IBFs) 47,228
3. Balances due from banks in foreign countries and
foreign central banks: 32,650
3.a. Foreign branches of other U.S. banks 0
3.b. Other banks in foreign countries and foreign central 32,650
banks
4. Balances due from Federal Reserve Banks 84,817 84,817
5. Total (sum of items 1 through 4) (total of column A
must equal Schedule RC, sum of items 1.a and 1.b) 869,454 869,454
Memorandum
Dollar Amounts in Thousands
1. Noninterest-bearing balances due from commercial
banks in the U.S. (included in item 2, column B above 42,086
</TABLE>
-16-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-B--Securities
Exclude assets held for trading.
<TABLE>
<CAPTION>
Held-to-maturity Available-for-sale
(Column A) (Column C)
Amortized (Column B) Amortized (Column D)
Dollar Amounts in Thousands Cost Fair Value Cost Fair Value
<S> <C> <C> <C> <C> <C>
1. U.S.Treasury securities 0 0 47,887 48,718
2. U.S. Government agency
obligations (exclude
mortgage-backed
securities):
2.a. Issued by U.S. Government
agencies 0 0 0 0
2.b. Issued by U.S.
Government-sponsored
agencies 0 0 307,840 301,584
3. Securities issued by states
and political subdivisions in
the U.S.:
3.a. General obligations 0 0 48,267 50,756
3.b. Revenue obligations 0 0 11,457 11,880
3.c. Industrial development and
similar obligations 0 0 0 0
4. Mortgage-backed
securities(MBS):
4.a. Pass-through securities:
4.a.1. Guaranteed by GNMA 0 0 68,317 68,317
4.a.2. Issued by FNMA and
FHLMC 0 0 113,526 114,899
4.a.3. Other pass-through
securities 0 0 0 0
4.b. Other mortgage-backed
securities (include CMOs,
REMICs, and stripped
MBS):
4.b.1. Issued or guaranteed by 0 0 991,770 973,624
</TABLE>
-17-
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
FNMA, FHLMC, or GNMA
4.b.2. Collateralized by MBS
issued or guaranteed by
FNMA, FHLMC, or GNMA 0 0 0 0
4.b.3. All other mortgage-backed
securities 0 0 0 0
5. Other debt securities:
5.a. Other domestic debt
securities 0 0 124,017 124,590
5.b. Foreign debt securities 0 0 0 0
6. Equity securities:
6.a. Investments in mutual funds
and other equity securities
with readily determinable
fair values 8,097 1,232,389
6.b. All other equity securities 180,986 180,986
7. Total (sum of items 1
through 6) (total of column
A must equal Schedule RC,
item 2.a) (total of column D
must equal Schedule RC,
item 2.b) 0 0 1,902,164 3,107,743
<CAPTION>
================================================================================
Memorandum
Dollar Amounts in Thousands
<S> <C> <C>
1. Pledged securities 2,646,548
2. Maturity and repricing data for debt securities (excluding
those in nonaccrual status):
2.a. Securities issued by the U.S.Treasury, U.S.Government
agencies, and states and political subdivisions in the U.S.;
other non-mortgage debt securities; and mortgage pass-through
securities other than those backed by closed-end first lien 1-4
family residential mortgages with a remaining maturity or
repricing frequency of:
2.a.1. Three months or less 6,822
2.a.2. Over three months through 12 months 13,528
2.a.3. Over one year through three years 114,315
2.a.4. Over three years through five years 392,135
2.a.5. Over five years through 15 years 10,728
2.a.6. Over 15 years 0
2.b. Mortgage pass-through securities backed by closed-end first
lien 1-4 family residential mortgages with a remaining
maturity or repricing frequency of:
2.b.1. Three months or less 79,693
</TABLE>
-18-
<PAGE>
<TABLE>
<S> <C> <C>
2.b.2. Over three months through 12 months 69,354
2.b.3. Over one year through three years 30,105
2.b.4. Over three years through five years 882
2.b.5. Over five years through 15 years 1,865
2.b.6. Over 15 years 1,317
2.c. Other mortgage-backed securities (include CMOs, REMICs,
and stripped MBS; exclude mortgage pass-through securities)
with an expected average life of:
2.c.1. Three years or less 385,014
2.c.2. Over three years 588,610
2.d. Debt securities with a REMAINING MATURITY of one year or less
(included in Memorandum items 2.a through 2.c above) 20,349
3.-6. Not applicable
7. Amortized cost of held-to-maturity securities sold or transferred
to available-for-sale or trading securities during the calendar
year-to-date (report the amortized cost at date of sale or transfer) 0
8. Not Applicable
9. Structured notes (included in the held-to-maturity and available-
for-sale accounts in Schedule RC-B, items 2,3, and 5):
9.a. Amortized cost 0
9.b. Fair value 0
</TABLE>
-19-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-C--Loans and Lease Financing Receivables
Part I. Loans and Leases
Do not deduct the allowance for loan and lease losses from amounts reported in
this schedule. Report total loans and leases, net of unearned income. Exclude
assets held for trading and commercial paper.
<TABLE>
<CAPTION>
(Column A) (Column B)
Consolidated Domestic
Bank Offices
Dollar Amounts in Thousands
<S> <C> <C> <C>
1. Loans secured by real estate 3,141,867
1.a. Construction and land development 600,812
1.b. Secured by farmland (including farm residential and
other improvements) 14,160
1.c. Secured by 1-4 family residential properties:
1.c.1. Revolving, open-end loans secured by 1-4 family
residential properties and extended under lines of
credit 198,082
1.c.2. All other loans secured by 1-4 family residential
properties:
1.c.2. Secured by first liens 1,526,889
a.
1.c.2. Secured by junior liens 21,781
b.
1.d. Secured by multifamily (5 or more) residential
properties 16,928
1.e. Secured by nonfarm nonresidential properties 763,215
2. Loans to depository institutions:
2.a. To commercial banks in the U.S. 256,702
2.a.1. To U.S. branches and agencies of foreign banks 0
2.a.2. To other commercial banks in the U.S. 256,702
2.b. To other depository institutions in the U.S. 0 0
2.c. To banks in foreign countries 404
2.c.1. To foreign branches of other U.S. banks 0
2.c.2. To other banks in foreign countries 404
3. Loans to finance agricultural production and other
loans to farmers 25,969 25,969
4. Commercial and industrial loans:
</TABLE>
-20-
<PAGE>
<TABLE>
<S> <C> <C> <C>
4.a. To U.S. addressees (domicile) 8,011,129 8,011,129
4.b. To non-U.S. addressees (domicile) 119,083 119,083
5. Acceptances of other banks:
5.a. Of U.S. banks 0 0
5.b. Of foreign banks 0 0
6. Loans to individuals for household, family, and other
personal expenditures (i.e., consumer loans)
(includes purchased paper) 956,067
6.a. Credit cards and related plans (includes check credit
and other revolving credit plans) 26,237
6.b. Other (includes single payment, installment, and all
student loans) 929,830
7. Loans to foreign governments and official institutions
(including foreign central banks) 14,404 14,404
8. Obligations (other than securities and leases) of
states and political subdivisions in the U.S. 54,802 54,802
9. Other loans 586,334
9.a. Loans for purchasing or carrying securities (secured
and unsecured) 222,423
9.b. All other loans (exclude consumer loans) 363,911
10. Lease financing receivables (net of unearned income) 525,056
10.a. Of U.S. addressees (domicile) 525,056
10.b. Of non-U.S. addressees (domicile) 0
11. LESS: Any unearned income on loans reflected in
items 1-9 above 0 0
12. Total loans and leases, net of unearned income (sum
of items 1 through 10 minus item 11) (total of column
A must equal Schedule RC, item 4.a) 13,691,817 13,691,817
<CAPTION>
================================================================================
Memoranda
Dollar Amounts in Thousands
<S> <C> <C>
1. Not applicable
2. Loans and leases restructured and in compliance with modified
terms (included in Schedule RC-C, part I, above and not
reported as past due or nonaccrual in Schedule RC-N,
Memorandum item 1):
2.a. Loans secured by real estate:
2.a.1. To U.S. addressees (domicile) 8
2.a.2. To non-U.S. addressees (domicile) 0
2.b. All other loans and all lease financing receivables (exclude loans to
individuals for household, family, and other personal expenditures) 0
2.c. Commercial and industrial loans to and lease financing receivables of
non-U.S. addressees (domicile) included in Memorandum item 2.b above 0
</TABLE>
-21-
<PAGE>
<TABLE>
<S> <C> <C>
3. Maturity and repricing data for loans and leases (excluding
those in nonaccrual status):
3.a. Closed-end loans secured by first liens on 1-4 family residential
properties in domestic offices (reported in Schedule RC-C, part I,
item 1.c.(2)(a), column B) with a remaining maturity or repricing
frequency of:
3.a.1. Three months or less 20,104
3.a.2. Over three months through 12 months 219,237
3.a.3. Over one year through three years 62,989
3.a.4. Over three years through five years 768,511
3.a.5. Over five years through 15 years 118,352
3.a.6. Over 15 years 334,106
3.b. All loans and leases (reported in Schedule RC-C, part I, items 1
through 10, column A) EXCLUDING closed-end loans secured by first
liens on 1-4 family residential properties in domestic offices
(reported in Schedule RC-C, part I, item 1.c.(2)(a), column B)
with a remaining maturity or repricing frequency of:
3.b.1. Three months or less 8,300,466
3.b.2. Over three months through 12 months 1,240,272
3.b.3. Over one year through three years 895,759
3.b.4. Over three years through five years 1,001,167
3.b.5. Over five years through 15 years 700,542
3.b.6. Over 15 years 2,110
3.c. Loans and leases (reported in Schedule RC-C, part I, items 1 through
10) with a REMAINING MATURITY of one year or less 3,851,342
3.d. Loans secured by nonfarm nonresidential properties in domestic offices
(reported in Schedule RC-C, part I, item 1.e, column B) with a
REMAINING MATURITY of over five years 164,891
3.e. Commercial and industrial loans (reported in Schedule RC-C, part I,
item 4, column A) with a REMAINING MATURITY of over three years 3,763,075
4. Loans to finance commercial real estate, construction, and land
development activities (not secured by real estate) included in
Schedule RC-C, part I, items 4 and 9, column A, page RC-6 477,657
5. Loans and leases held for sale (included in Schedule RC-C, part I,
page RC-6) 23,577
6. Adjustable rate closed-end loans secured by first liens on 1-4
family residential properties in domestic offices (included in
Schedule RC-C, part I, item 1.c.(2)(a), column B, page RC-6) 1,451,038
</TABLE>
-22-
<PAGE>
================================================================================
Part II. Loans to Small Businesses and Small Farms
Schedule RC-C, Part II is to be completed only with the June Report of
Condition.
Report the number and amount currently outstanding as of June 30 of business
loans with "original amounts" of $1,000,000 or less and farm loans with
"original amounts" of $500,000 or less. The following guidelines should be used
to determine the "original amount" of a loan: (1) For loans drawn down under
lines of credit or loan commitments, the "original amount" of the loan is the
size of the line of credit or loan commitment when the line of credit or loan
commitment was most recently approved, extended, or renewed prior to the report
date. However, if the amount currently outstanding as of the report date exceeds
this size, the "original amount" is the amount currently outstanding on the
report date. (2) For loan participations and syndications, the "original amount"
of the loan participation or syndication is the entire amount of the credit
originated by the lead lender. (3) For all other loans, the "original amount" is
the total amount of the loan at origination or the amount currently outstanding
as of the report date, whichever is larger.
Loans to Small Businesses
YES/NO
1. Indicate in the appropriate box at the right whether all or N/A
substantially all of the dollar volume of your bank's "Loans
secured by nonfarm nonresidential properties" in domestic offices
reported in Schedule RC-C, part I, item 1.e, column B, and all or
substantially all of the dollar volume of your bank's "Commercial
and industrial loans to U.S. addressees" in domestic offices
reported in Schedule RC-C, part I, item 4.a, column B, have original
amounts of $100,000 or less (If your bank has no loans outstanding
in both of these two loan categories, place an "X" in the box marked
"NO.") N/A
If Yes, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5.
If NO and your bank has loans outstanding in either loan category, skip items
2.a and 2.b, complete items 3 and 4 below, and go to item 5. If NO and your bank
has no loans outstanding in both categories, skip items 2 through 4, and go to
item 5.
2. Report the total number of loans currently outstanding for Number of
each of the following Schedule RC-C, part I, loan categories: Loans
2.a. "Loans secured by nonfarm nonresidential properties" in domestic N/A
-23-
<PAGE>
offices reported in Schedule RC-C, part I, item 1.e, column B
(Note: Item 1.e, column B, divided by the number of loans
should NOT exceed $100,000.)
2.b. "Commercial and industrial loans to U.S. addressees" in domestic
offices reported in Schedule RC-C, part I, item 4.a, column B
(Note: Item 4.a., column B, divided by the number of loans should
NOT exceed $100,000.) N/A
<TABLE>
<CAPTION>
(Column B)
(Column A) Amount
Number of Currently
Dollar Amounts in Thousands Loans Outstanding
<S> <C> <C> <C>
3. Number and amount currently outstanding of
"Loans secured by nonfarm nonresidential
properties" in domestic offices reported in Schedule
RC-C, part I, item 1.e, column B (sum of items 3.a
through 3.c must be less than or equal to Schedule
RC-C, part I, item 1.e, column B):
3.a. With original amounts of $100,000 or less N/A N/A
3.b. With original amounts of more than $100,000 through
$250,000 N/A N/A
3.c. With original amounts of more than $250,000 through
$1,000,000 N/A N/A
4. Number and amount currently outstanding of
"Commercial and industrial loans to U.S. addressees" in
domestic offices reported in Schedule RC-C, part I, item
4.a, column B (sum of items 4.a through 4.c must be
less than or equal to Schedule RC-C, part I, item 4.a,
column B):
4.a. With original amounts of $100,000 or less N/A N/A
4.b. With original amounts of more than $100,000 through
$250,000 N/A N/A
4.c. With original amounts of more than $250,000 through
$1,000,000 N/A N/A
Agricultural Loans to Small Farms YES/NO
5. Indicate in the appropriate box at the right whether all or
substantially all of the dollar volume of your bank's "Loans
secured by farmland (including farm residential and other
improvements)" in domestic offices reported in Schedule RC-C,
part I, item 1.b, column B, and all or substantially all of
the dollar volume of your bank's "Loans to finance agricultural
production and other loans to farmers" in domestic offices
reported in Schedule RC-C, part I, item 3, column B, N/A
</TABLE>
-24-
<PAGE>
have original amounts of $100,000 or less (If your bank has no
loans outstanding in both of these two loan categories, place
an "X" in the box marked "NO.")
If YES, complete items 6.a and 6.b below and do not complete items 7 and 8.
If NO and your bank has loans outstanding in either category, skip items 6.a and
6.b and complete items 7 and 8 below.
If NO and your bank has no loans outstanding in both loan categories, do not
complete items 6 through 8.
<TABLE>
<CAPTION>
Number of
Loans
<S> <C> <C>
6. Report the total number of loans currently outstanding for each
of the following Schedule RC-C, part I, loan categories:
6.a. "Loans secured by farmland (including farm residential and other
improvements)" in domestic offices reported in Schedule RC-C, part I,
item 1.b, column B (Note: Item 1.b, column B, divided by the number
of loans should NOT exceed $100,000.) N/A
6.b. "Loans to finance agricultural production and other loans to farmers"
in domestic offices reported in Schedule RC-C, part I, item 3, column
B (Note: Item 3, column B, divided by the number of loans should
NOT exceed $100,000.) N/A
<CAPTION>
(Column B)
(Column A) Amount
Number of Currently
Dollar Amounts in Thousands Loans Outstanding
<S> <C> <C> <C>
7. Number and amount currently outstanding of
"Loans secured by farmland (including farm
residential and other improvements)" in domestic
offices reported in Schedule RC-C, part I, item 1.b,
column B (sum of items 7.a through 7.c must be less
than or equal to Schedule RC-C, part I, item 1.b,
column B):
7.a. With original amounts of $100,000 or less N/A N/A
7.b. With original amounts of more than $100,000 through
$250,000 N/A N/A
7.c. With original amounts of more than $250,000 through
$500,000 N/A N/A
8. Number and amount currently outstanding of
"Loans to finance agricultural production and other
loans to farmers" in domestic offices reported in
Schedule RC-C, part I, item, 3, column B (sum of
items 8.a through 8.c must be less than or equal to
Schedule RC-C, part 1, item 3, column B):
8.a. With original amounts of $100,000 or less N/A N/A
8.b. With original amounts of more than $100,000 through
$250,000 N/A N/A
</TABLE>
-25-
<PAGE>
8.c. With original amounts of more than $250,000 through
$500,000 N/A N/A
-26-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-D--Trading Assets and Liabilities
Schedule RC-D is to be completed only by banks with $1 billion or more in total
assets or with $2 billion or more in par/notional amount of off-balance sheet
derivative contracts (as reported in Schedule RC-L, items 14.a through 14.e,
columns A through D).
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
ASSETS
1. U.S.Treasury securities in domestic offices 0
2. U.S.Government agency obligations in domestic offices (exclude 0
mortgage-backed securities)
3. Securities issued by states and political subdivisions in the U.S. in 10,000
domestic offices
4. Mortgage-backed securities (MBS) in domestic offices:
4.a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or 0
GNMA
4.b. Other mortgage-backed securities issued or guaranteed by FNMA, 0
FHLMC, or GNMA (include CMOs, REMICs, and stripped MBS)
4.c. All other mortgage-backed securities 0
5. Other debt securities in domestic offices 0
6.-8. Not applicable
9. Other trading assets in domestic offices 39,674
10. Trading assets in foreign offices 0
11. Revaluation gains on interest rate, foreign exchange rate, and
other commodity and equity contracts:
11.a. In domestic offices 0
11.b. In foreign offices 0
12. Total trading assets (sum of items 1 through 11) (must equal 49,674
Schedule RC, item 5)
LIABILITIES
13. Liability for short positions 0
14. Revaluation losses on interest rate, foreign exchange rate, and other 0
commodity and equity contracts
15. Total trading liabilities (sum of items 13 and 14) (must equal 0
Schedule RC, item 15.b)
</TABLE>
-27-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-E--Deposit Liabilities
<TABLE>
<CAPTION>
Part I. Deposits in Domestic Offices
Transaction Accounts Nontransaction
Accounts
(Column A) (Column B) (Column C)
Total transaction Memo: Total Total
accounts demand nontransaction
(including deposits accounts
total demand (included in (including
deposits) column A) MMDAs)
Dollar Amounts in Thousands
Deposits of:
<S> <C> <C> <C>
1. Individuals, partnerships, and 2,853,168 2,489,348 3,845,234
corporations
2. U.S. Government 847 847 0
3. States and political 226,177 49,251 11,674
subdivisions
in the U.S.
4. Commercial banks in the U.S. 151,423 151,423 0
5. Other depository institutions in 1,338 1,338 0
the U.S.
6. Banks in foreign countries 8,535 8,535 0
7. Foreign governments and official 0 0 0
institutions (including foreign
central banks)
8. Certified and official checks 18,519 18,519
9. Total (sum of items 1 through 8) 3,260,007 2,719,261 3,856,908
(sum of columns A and C must
equal Schedule RC, item 13.a)
</TABLE>
-28-
<PAGE>
================================================================================
<TABLE>
<CAPTION>
Memoranda
Dollar Amounts in Thousands
<S> <C> <C>
1. Selected components of total deposits (i.e., sum of item 9,
columns A and C):
1.a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts 205,460
1.b. Total brokered deposits 0
1.c. Fully insured brokered deposits (included in Memorandum item
1.b above):
1.c.1. Issued in denominations of less than $100,000 0
1.c.2. Issued either in denominations of $100,000 or in denominations 0
greater than $100,000 and participated out by the broker in shares of
$100,000 or less
1.d. Maturity data for brokered deposits:
1.d.1. Brokered deposits issued in denominations of less than $100,000 with 0
a remaining maturity of one year or less (included in Memorandum
item 1.c.(1) above)
1.d.2. Brokered deposits issued in denominations of $100,000 or more with 0
a remaining maturity of one year or less (included in Memorandum
item 1.b above)
1.e. Preferred deposits (uninsured deposits of states and political N/A
subdivisions in the U.S. reported in item 3 above which are secured or
collateralized as required under state law) (to be completed for the
December report only)
2. Components of total nontransaction accounts (sum of
Memorandum items 2.a through 2.c must equal item 9, column C
above):
2.a. Savings deposits:
2.a.1. Money market deposit accounts (MMDAs) 2,863,065
2.a.2. Other savings deposits (excludes MMDAs) 193,902
2.b. Total time deposits of less than $100,000 550,441
2.c. Total time deposits of $100,000 or more 249,500
3. All NOW accounts (included in column A above) 540,746
4. Not applicable
5. Maturity and repricing data for time deposits of less than
$100,000:
5.a. Time deposits of less than $100,000 with a remaining maturity or
repricing frequency of:
5.a.1. Three months or less 149,890
5.a.2. Over three months through 12 months 265,333
5.a.3. Over one year through three years 101,111
</TABLE>
-29-
<PAGE>
<TABLE>
<S> <C> <C>
5.a.4. Over three years 34,107
5.b. Time deposits of less than $100,000 with a REMAINING MATURITY 392,540
of one year or less (included in Memorandum items 5.a.(1) through
5.a.(4) above)
6. Maturity and repricing data for time deposits of $100,000 or more:
6.a. Time deposits of $100,000 or more with a remaining maturity or
repricing frequency of:
6.a.1. Three months or less 139,267
6.a.2. Over three months through 12 months 80,464
6.a.3. Over one year through three years 19,719
6.a.4. Over three years 10,050
6.b. Time deposits of $100,000 or more with a REMAINING MATURITY of 219,731
one year or less (included in Memorandum items 6.a.(1) through
6.a.(4) above)
<CAPTION>
Part II. Deposits in Foreign Offices (including Edge and
Agreement subsidiaries and IBFs)
Dollar Amounts in Thousands
Deposits of:
<S> <C> <C>
1. Individuals, partnerships, and corporations 4,280,489
2. U.S. banks (including IBFs and foreign branches of U.S. banks) 0
3. Foreign banks (including U.S. branches and agencies of foreign 221,073
banks, including their IBFs)
4. Foreign governments and official institutions (including foreign 0
central
banks)
5. Certified and official checks 0
6. All other deposits 0
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b) 4,501,562
<CAPTION>
Memorandum
Dollar Amounts in Thousands
<S> <C> <C>
1. Time deposits with a remaining maturity of one year or less (included 4,501,562
in Part II, item 7 above)
</TABLE>
-30-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-F--Other Assets
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
1. Income earned, not collected on loans 81,004
2. Net deferred tax assets 0
3. Interest-only strips receivable (not in the form of a security) on:
3.a. Mortgage loans 0
3.b. Other financial assets 0
4. Other (itemize and describe amounts that exceed 25% of this item) 160,642
4.a. 0
4.b. 0
4.c. 0
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11) 241,646
<CAPTION>
Memorandum
Dollar Amounts in Thousands
<S> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes 0
</TABLE>
-31-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-G--Other Liabilities
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
1.a. Interest accrued and unpaid on deposits in domestic offices 5,586
1.b. Other expenses accrued and unpaid (includes accrued income taxes 54,562
payable)
2. Net deferred tax liabilities 504,131
3. Minority interest in consolidated subsidiaries 0
4. Other (itemize and describe amounts that exceed 25% of this item) 505,036
4.a. A/P FACTORING 427,779
4.b. 0
4.c. 0
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20) 1,069,315
</TABLE>
-32-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-H--Selected Balance Sheet Items for Domestic Offices
<TABLE>
<CAPTION>
Domestic
Offices
Dollar Amounts in Thousands
<S> <C> <C>
1. Customers' liability to this bank on acceptances outstanding 348,157
2. Bank's liability on acceptances executed and outstanding 348,157
3. Federal funds sold and securities purchased under agreements to resell 2,393,095
4. Federal funds purchased and securities sold under agreements to repurchase 4,059,794
5. Other borrowed money 1,171,399
EITHER
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs 0
OR
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs 4,477,247
8. Total assets (excludes net due from foreign offices, Edge and Agreement subsidiaries, 20,674,504
and IBFs)
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement 14,013,407
subsidiaries, and IBFs)
<CAPTION>
In items 10-17, report the amortized (historical) cost of both held-to-maturity and available-for-sale securities
in domestic offices.
<S> <C> <C>
10. U.S.Treasury securities 47,887
11. U.S. Government agency obligations (exclude mortgage-backed securities) 307,840
12. Securities issued by states and political subdivisions in the U.S. 59,724
13. Mortgage-backed securities (MBS):
13.a. Pass-through securities
13.a.1. Issued or guaranteed by FNMA, FHLMC, or 181,843
</TABLE>
-33-
<PAGE>
<TABLE>
<S> <C> <C>
GNMA
13.a.2. Other pass-through securities 0
13.b. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS):
13.b.1. Issued or guaranteed by FNMA,FHLMC, or GNMA 991,770
13.b.2. All other mortgage-backed securities 0
14. Other domestic debt securities 124,017
15. Foreign debt securities 0
16. Equity securities:
16.a. Investments in mutual funds and other equity securities with readily determinable fair 8,097
values
16.b. All other equity securities 180,986
17. Total amortized (historical) cost of both held-to-maturity and available-for-sale 1,902,164
securities (sum of items 10 through 16)
<CAPTION>
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
Dollar Amounts in Thousands
<S> <C> <C>
EITHER
1. Net due from the IBF of the domestic offices of the reporting bank 0
OR
2. Net due to the IBF of the domestic offices of the reporting bank 75,581
</TABLE>
-34-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-I--Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
1. Total IBF assets of the consolidated bank (component of Schedule RC, 0
item 12)
2. Total IBF loans and lease financing receivables (component of Schedule 0
RC-C, part I, item 12, column A)
3. IBF commercial and industrial loans (component of Schedule RC-C, part 0
I, item 4, column A)
4. Total IBF liabilities (component of Schedule RC, item 21) 75,581
5. IBF deposit liabilities due to banks, including other IBFs (component of
Schedule RC-E, part II, items 2 and 3) 75,292
6. Other IBF deposit liabilities (component of Schedule RC-E, part II. items 0
1, 4, 5, and 6)
</TABLE>
-35-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-K--Quarterly Averages
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
ASSETS
<S> <C> <C>
1. Interest-bearing balances due from depository institutions 21,688
2. U.S.Treasury securities and U.S.Government agency obligations
(including mortgage-backed securities issued or guaranteed by 1,565,632
FNMA, FHLMC, or GNMA)
3. Securities issued by states and political subdivisions in the U.S. 67,053
4.a. Other debt securities (including mortgage-backed securities not
issued or guaranteed by FNMA, FHLMC, or GNMA) 44,493
4.b. Equity securities (includes investments in mutual funds and Federal 83,617
Reserve stock)
5. Federal funds sold and securities purchased under agreements to
resell 1,999,540
6. Loans:
6.a. Loans in domestic offices:
6.a.1. Total loans 12,961,042
6.a.2. Loans secured by real estate 3,067,843
6.a.3. Loans to finance agricultural production and other loans to farmers 26,951
6.a.4. Commercial and industrial loans 7,812,566
6.a.5. Loans to individuals for household, family, and other personal 931,314
expenditures
6.b. Total loans in foreign offices, Edge and Agreement subsidiaries,
and IBFs 3,537
7. Trading assets 46,523
8. Lease financing receivables (net of unearned income) 521,874
9. Total assets 18,798,865
LIABILITIES
10. Interest-bearing transaction accounts in domestic offices (NOW
accounts, ATS accounts, and telephone and preauthorized transfer
accounts) (exclude demand deposits) 543,120
11. Nontransaction accounts in domestic offices:
11.a. Money market deposit accounts (MMDAs) 2,819,539
11.b. Other savings deposits 227,106
</TABLE>
-36-
<PAGE>
<TABLE>
<S> <C> <C>
11.c. Time deposits of $100,000 or more 282,263
11.d. Time deposits of less than $100,000 547,710
12. Interest-bearing deposits in foreign offices, Edge and Agreement
subsidiaries, and IBFs 4,162,709
13. Federal funds purchased and securities sold under agreements to
repurchase 4,243,854
14. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases) 660,501
</TABLE>
-37-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-L--Off-Balance Sheet Items
Please read carefully the instructions for the preparation of Schedule RC-L.
Some of the amounts reported in Schedule RC-L are regarded as volume indicators
and not necessarily as measures of risk.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
1. Unused commitments:
1.a. Revolving, open-end lines secured by 1-4 family residential 113,821
properties, e.g., home equity lines
1.b. Credit card lines 0
1.c. Commercial real estate, construction, and land development:
1.c.1. Commitments to fund loans secured by real estate 460,823
1.c.2. Commitments to fund loans not secured by real estate 274,859
1.d. Securities underwriting 0
1.e. Other unused commitments 13,785,484
2. Financial standby letters of credit and foreign office guarantees 3,144,685
2.a. Amount of financial standby letters of credit conveyed to others 573,407
3. Performance standby letters of credit and foreign office guarantees 157,814
3.a. Amount of performance standby letters of credit conveyed to others 817
4. Commercial and similar letters of credit 44,454
5. Participations in acceptances (as described in the instructions) 20,576
conveyed to others by the reporting bank
6. Participations in acceptances (as described in the instructions ) 0
acquired by the reporting (nonaccepting) bank
7. Securities borrowed 0
8. Securities lent (including customers' securities lent where the 131,024
customer is indemnified against loss by the reporting bank)
9. Financial assets transferred with recourse that have been
treated as sold for Call Report purposes:
9.a. First lien 1--4 family residential mortgage loans:
9.a.1. Outstanding principal balance of mortgages transferred as of the 0
report date
9.a.2. Amount of recourse exposure on these mortgages as of the report 0
date
9.b. Other financial assets (excluding small business obligations
reported in item 9.c):
9.b.1. Outstanding principal balance of assets transferred as of the report 265,066
</TABLE>
-38-
<PAGE>
<TABLE>
<S> <C> <C>
date
9.b.2. Amount of recourse exposure on these assets as of the report date 265,066
9.c. Small business obligations transferred with recourse under
Section 208 of the Riegle Community Development and
Regulatory Improvement Act of 1994:
9.c.1. Outstanding principal balance of small business obligations 0
transferred as of the report date
9.c.2. Amount of retained recourse on these obligations as of the report 0
date
10. Notional amount of credit derivatives:
10.a. Credit derivatives on which the reporting bank is the guarantor 0
10.b. Credit derivatives on which the reporting bank is the beneficiary 0
11. Spot foreign exchange contracts 171,823
12. All other off-balance sheet liabilities (exclude off-balance sheet 0
derivatives ) (itemize and describe each component of this item over
25% of Schedule RC, item 28, "Total equity capital")
12.a. 0
12.b. 0
12.c. 0
12.d. 0
13. All other off-balance sheet assets (exclude off-balance sheet 0
derivatives) (itemize and describe each component of this item over
25% of Schedule RC, item 28, "Total equity capital")
13.a. 0
13.b. 0
13.c. 0
13.d. 0
<CAPTION>
======================================================================================================
Dollar Amounts in Thousands (Column B) (Column C) (Column D)
Off-balance Sheet (Column A) Foreign Equity Commodity
Derivatives Position Indicators Interest Rate Exchange Derivative and Other
Contracts Contracts Contracts Contracts
<S> <C> <C> <C> <C> <C>
14. Gross Amounts (e.g., notional
amounts) (for each column,
sum of items 14.a through 14.e
must equal sum of items 15,
16.a, and 16.b):
14.a. Futures Contracts 1,247,000 0 0 0
14.b. Forward contracts 0 1,466,555 0 0
14.c. Exchange-traded option
contracts:
14.c.1. Written options 0 0 0 0
14.c.2. Purchased options 0 0 0 0
</TABLE>
-39-
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
14.d. Over-the-counter option
contracts:
14.d.1. Written options 6,062,774 35,686 388,690 0
14.d.2. Purchased options 6,164,524 35,686 388,690 0
14.e. Swaps 23,269,936 71,908 0 0
15. Total gross notional amount of
derivative contracts held for
trading 0 0 0 0
16. Gross notional amount of
derivative contracts held for
purposes other than trading:
16.a. Contracts marked to market 35,198,964 1,583,520 777,380 0
16.b. Contracts not marked to market 1,545,270 26,315 0 0
16.c. Interest rate swaps where the 11,492,603
bank has agreed to pay a fixed
rate
17. Gross fair values of derivative
contracts:
17.a. Contracts held for trading:
17.a.1. Gross positive fair value 0 0 0 0
17.a.2. Gross negative fair value 0 0 0 0
17.b. Contracts held for purposes
other than trading that are
marked to market:
17.b.1. Gross positive fair value 349,636 976 49,450 0
17.b.2. Gross negative fair value 332,183 976 49,450 0
17.c. Contracts held for purposes
other than trading that are not
marked to market:
17.c.1. Gross positive fair value 22,398 857 0 0
17.c.2. Gross negative fair value 4,815 0 0 0
<CAPTION>
===================================================================================================
Memoranda
Dollar Amounts in Thousands
<S> <C> <C>
1.-2. Not applicable
3. Unused commitments with an original maturity
exceeding one year that are reported in
Schedule RC-L, items 1.a through 1.e, above 9,403,746
</TABLE>
-40-
<PAGE>
<TABLE>
<S> <C> <C>
(report only the unused portions of
commitments that are fee paid or otherwise
legally binding)
3.a. Participations in commitments with an
original maturity exceeding one year
conveyed to others 986,212
4. To be completed only by banks with $1 29,827
billion or more in total assets:
Standby letters of credit and foreign office
guarantees (both financial and performance)
issued to non-U.S. addressees (domicile)
included in Schedule RC-L, items 2 and 3, above
5. Loans to individuals for household, family,
or other personal expenditures that have
been securitized and sold (with servicing
retained), amounts outstanding by
type of loan:
5.a. Loans to purchase private passenger 0
automobiles (to be completed for the
September report only)
5.b. Credit cards and related plans (TO BE 0
COMPLETED QUARTERLY)
5.c. All other consumer credit (including mobile 0
home loans) (to be completed for the
September report only)
</TABLE>
-41-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-M--Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
1. Extensions of credit by the reporting bank to its executive
officers, directors, principal shareholders, and their related
interests as of the report date:
1.a. Aggregate amount of all extensions of credit to all executive 380,310
officers, directors, principal shareholders, and their related
interests
1.b. Number of executive officers, directors, and principal 9
shareholders to whom the amount of all extensions of credit by
the reporting bank (including extensions of credit to related
interests) equals or exceeds the lesser of $500,000 or 5 percent
of total capital as defined for this purpose in agency regulations
2. Federal funds sold and securities purchased under agreements 0
to resell with U.S. branches and agencies of foreign banks
(included in Schedule RC, item 3)
3. Not applicable
4. Outstanding principal balance of 1-4 family residential
mortgage loans serviced for others (include both retained
servicing and purchased servicing):
4.a. Mortgages serviced under a GNMA contract 0
4.b. Mortgages serviced under a FHLMC contract:
4.b.1. Serviced with recourse to servicer 0
4.b.2. Serviced without recourse to servicer 0
4.c. Mortgages serviced under a FNMA contract
4.c.1. Serviced under a regular option contract 0
4.c.2. Serviced under a special option contract 0
4.d. Mortgages serviced under other servicing contracts 0
5. To be completed only by banks with $1 billion or more in
total assets:
Customers' liability to this bank on acceptances outstanding
(sum of items 5.a and 5.b must equal Schedule RC, item 9):
5.a. U.S. addressees (domicile) 348,070
5.b. Non-U.S. addressees (domicile) 87
6. Intangible assets:
6.a. Mortgage servicing assets 0
6.a.1. Estimated fair value of mortgage servicing assets 0
6.b. Other identifiable intangible assets:
</TABLE>
-42-
<PAGE>
<TABLE>
<S> <C> <C>
6.b.1. Purchased credit card relationships and nonmortgage 0
servicing assets
6.b.2. All other identifiable intangible assets 0
6.c. Goodwill 13,827
6.d. Total (sum of items 6.a, 6.b.(1), 6.b.(2), and 6.c) (must equal 13,827
Schedule RC, item 10)
6.e. Amount of intangible assets (included in item 6.b.(2) above) that 0
have been grandfathered or are otherwise qualifying for
regulatory capital purposes
7. Mandatory convertible debt, net of common or perpetual 0
preferred stock dedicated to redeem the debt
8.a. Other real estate owned:
8.a.1. Direct and indirect investments in real estate ventures 0
8.a.2. All other real estate owned:
8.a.2.a. Construction and land development in domestic offices 0
8.a.2.b. Farmland in domestic offices 0
8.a.2.c. 1-4 family residential properties in domestic offices 196
8.a.2.d. Multifamily (5 or more) residential properties in domestic offices 0
8.a.2.e. Nonfarm nonresidential properties in domestic offices 564
8.a.2.f. In Foreign Offices 0
8.a.3. Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule 760
RC, item 7)
8.b. Investments in unconsolidated subsidiaries and associated
companies:
8.b.1. Direct and indirect investments in real estate ventures 0
8.b.2. All other investments in unconsolidated subsidiaries and 12,664
associated companies
8.b.3. Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule 12,664
RC, item 8)
9. Noncumulative perpetual preferred stock and related surplus 0
included in Schedule RC, item 23, "Perpetual preferred stock and
related surplus"
10. Mutual fund and annuity sales during the quarter (include
proprietary, private label, and third party products):
10.a. Money market funds 550,228
10.b. Equity securities funds 18,214
10.c. Debt securities funds 5,796
10.d. Other mutual funds 11,554
10.e. Annuities 1,771
10.f. Sales of proprietary mutual funds and annuities (included in 539,049
items 10.a through 10.e above)
11. Net unamortized realized deferred gains (losses) on off-balance 0
sheet derivative contracts included in assets and liabilities
reported in Schedule RC
12. Amount of assets netted against nondeposit liabilities and 0
</TABLE>
-43-
<PAGE>
<TABLE>
<S> <C> <C>
deposits in foreign offices (other than insured branches in Puerto
Rico and U.S. territories and possessions) on the balance sheet
(Schedule RC) in accordance with generally accepted accounting
principles
13. Outstanding principal balance of loans other than 1-4 family 0
residential mortgage loans that are serviced for others (to be
completed if this balance is more than $10 million and exceeds
ten percent of total assets)
<CAPTION>
================================================================================
Memorandum
Dollar Amounts in Thousands
<S> <C> <C>
1. Reciprocal holdings of banking organizations' capital instruments (to
be completed for the December report only) N/A
</TABLE>
-44-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-N--Past Due and Nonaccrual Loans,
Leases, and Other Assets
The FFIEC regards the information reported in all of
Memorandum item 1, in items 1 through 10, column A, and in
Memorandum items 2 through 4, column A, as confidential.
<TABLE>
<CAPTION>
(Column B)
Past Due 90
days or more
and still (Column C)
Dollar Amounts in Thousands accruing Nonaccrual
<S> <C> <C> <C>
1. Loans secured by real estate:
1.a. To U.S. addressees (domicile) 2,921 8,106
1.b. To non-U.S. addressees (domicile) 0 0
2. Loans to depository institutions and
acceptances of other banks:
2.a. To U.S. banks and other U.S. depository 0 0
institutions
2.b. To foreign banks 0 0
3. Loans to finance agricultural production and 258 0
other loans to farmers
4. Commercial and industrial loans:
4.a. To U.S. addressees (domicile) 31,428 19,520
4.b. To non-U.S. addressees (domicile) 1,369 0
5. Loans to individuals for household,
family, and other personal expenditures:
5.a. Credit cards and related plans 0 23
5.b. Other (includes single payment, installment, 527 371
and all student loans)
6. Loans to foreign governments and official 0 0
institutions
7. All other loans 419 0
8. Lease financing receivables:
8.a. Of U.S. addressees (domicile) 0 182
8.b. Of non-U.S. addressees (domicile) 0 0
9. Debt securities and other assets (exclude 0 0
other real estate owned and other
repossessed assets)
</TABLE>
-45-
<PAGE>
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed
portions of past due and nonaccrual loans and leases. Report in item 10 below
certain guaranteed loans and leases that have already been included in the
amounts reported in items 1 through 8.
<TABLE>
<S> <C> <C> <C>
10. Loans and leases reported in items 1 through 0 0
8 above which are wholly or partially
guaranteed by the U.S. Government
10.a. Guaranteed portion of loans and leases 0 0
included in item 10 above
<CAPTION>
(Column B)
Past Due 90
days or more
and still (Column C)
Memoranda Dollar Amounts in Thousands accruing Nonaccrual
<S> <C> <C> <C>
2. Loans to finance commercial real estate, 792 0
construction, and land development activities
(not secured by real estate) included in
Schedule RC-N, items 4 and 7 above
3. Loans secured by real estate in domestic
offices (included in Schedule RC-N, item
1, above):
3.a. Construction and land development 0 0
3.b. Secured by farmland 0 0
3.c. Secured by 1-4 family residential
properties:
3.c.1. Revolving, open-end loans secured by 1-4 0 138
family residential properties and extended
under lines of credit
3.c.2. All other loans secured by 1-4 family 1,734 3,590
residential properties
3.d. Secured by multifamily (5 or more) residential 0 0
properties
3.e. Secured by nonfarm nonresidential 1,187 4,378
properties
<CAPTION>
(Column B)
Past Due 90
days or more
</TABLE>
-46-
<PAGE>
<TABLE>
<S> <C> <C>
4. Interest rate, foreign exchange rate, and other commodity and
equity contracts:
4.a. Book value of amounts carried as assets 0
4.b. Replacement cost of contracts with a positive replacement cost 0
</TABLE>
-47-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-O--Other Data for Deposit Insurance and FICO
Assessments
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
1. Unposted debits (see instructions):
1.a. Actual amount of all unposted debits: 15,236
OR
1.b. Separate amount of all unposted debits:
1.b.1. Actual amount of unposted debits to demand deposits 0
1.b.2. Actual amount on unposted debits to time and savings deposits 0
2. Unposted credits (see instructions):
2.a. Actual amount of all unposted credits 0
OR
2.b. Separate amount of unposted credits:
2.b.1. Actual amount of unposted credits to demand deposits 0
2.b.2. Actual amount on unposted credits to time and savings deposits 0
3. Uninvested trust funds (cash) held in bank's own trust 0
department (not included in total deposits in domestic offices)
4. Deposits of consolidated subsidiaries in domestic offices
and in insured branches in Puerto Rico and U.S. territories
and possessions (not included in total deposits):
4.a. Demand deposits of consolidated subsidiaries 0
4.b. Time and savings deposits of consolidated subsidiaries 0
4.c. Interest accrued and unpaid on deposits of consolidated 0
subsidiaries
5. Deposits in insured branches in Puerto Rico and U.S.
territories and possessions:
5.a. Demand deposits in insured branches (included in Schedule RC-E, part II) 0
5.b. Time and savings deposits in insured branches (included in 0
Schedule RC-E, part II)
5.c. Interest accrued and unpaid on deposits in insured branches 0
(included in Schedule RC-G, item 1.b)
6. Reserve balances actually passed through to the Federal
Reserve by the reporting bank on behalf of its respondent
depository institutions that are also reflected as deposit
liabilities of the reporting bank:
</TABLE>
-48-
<PAGE>
<TABLE>
<S> <C> <C>
6.a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, item 4 or 5, column B) 0
6.b. Amount reflected in time and savings deposits (included in 0
Schedule RC-E, Part I, item 4 or 5, column A or C, but not
column B)
7. Unamortized premiums and discounts on time and savings
deposits:
7.a. Unamortized premiums 0
7.b. Unamortized discounts 0
8. To be completed by banks with "Oakar deposits."
8.a. Deposits purchased or acquired from other FDIC-insured
institutions during the quarter (exclude deposits purchased
or acquired from foreign offices other than insured branches
in Puerto Rico and U.S. territories and possessions):
8.a.1. Total deposits purchased or acquired from other FDIC-insured 0
institutions during the quarter
8.a.2. Amount of purchased or acquired deposits reported in item 0
8.a.(1) above attributable to a secondary fund (i.e., BIF members
report deposits attributable to SAIF; SAIF members report
deposits attributable to BIF)
8.b. Total deposits sold or transferred to other FDIC-insured 0
institutions during the quarter (exclude sales or transfers by the
reporting bank of deposits in foreign offices other than insured
branches in Puerto Rico and U.S. territories and possessions)
9. Deposits in lifeline accounts
10. Benefit-responsive "Depository Institution Investment Contracts" 0
(included in total deposits in domestic offices)
11. Adjustments to demand deposits in domestic offices and in
insured branches in Puerto Rico and U.S. territories and
possessions reported in Schedule RC-E for certain
reciprocal demand balances:
11.a. Amount by which demand deposits would be reduced if the 0
reporting bank's reciprocal demand balances with the domestic
offices of U.S. banks and savings associations and insured
branches in Puerto Rico and U.S. territories and possessions
that were reported on a gross basis in Schedule RC-E had been
reported on a net basis
11.b. Amount by which demand deposits would be increased if the 0
reporting bank's reciprocal demand balances with foreign banks
and foreign offices of other U.S. banks (other than insured
branches in Puerto Rico and U.S. territories and possessions)
that were reported on a net basis in Schedule RC-E had been
reported on a gross basis
11.c. Amount by which demand deposits would be reduced if cash 0
items in process of collection were included in the calculation of
</TABLE>
-49-
<PAGE>
<TABLE>
<S> <C> <C>
the reporting bank's net reciprocal demand balances with the
domestic offices of U.S. banks and savings associations and
insured branches in Puerto Rico and U.S. territories and
possessions in Schedule RC-E
12. Amount of assets netted against deposit liabilities in
domestic offices and in insured branches in Puerto Rico and
U.S. territories and possessions on the balance sheet
(Schedule RC) in accordance with generally accepted
accounting principles (exclude amounts related to
reciprocal demand balances):
12.a. Amount of assets netted against demand deposits 0
12.b. Amount of assets netted against time and savings deposits 0
</TABLE>
-50-
<PAGE>
Memoranda (to be completed each quarter except as noted)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C>
1. Total deposits in domestic offices of the bank (sum of
Memorandum items 1.a.(1) and 1.b.(1) must equal Schedule
RC, item 13.a):
1.a. Deposit accounts of $100,000 or less:
1.a.1. Amount of deposit accounts of $100,000 or less 3,312,198
Number
1.a.2. Number of deposit accounts of $100,000 or less (to be N/A
completed for the June report only)
1.b. Deposit accounts of more than $100,000:
1.b.1. Amount of deposit accounts of more than $100,000 3,804,717
Number
1.b.2. Number of deposit accounts of more than $100,000 9,383
2. Estimated amount of uninsured deposits in domestic offices
of the bank:
2.a. An estimate of your bank's uninsured deposits can be
determined by multiplying the number of deposit accounts of
more than $100,000 reported in Memorandum item 1.b.(2) above
by $100,000 and subtracting the result from the amount of
deposit accounts of more than $100,000 reported in
Memorandum item 1.b.(1) above.
YES/NO
Indicate in the appropriate box at the right whether your bank has NO
a method or procedure for determining a better estimate of
uninsured deposits than the estimate described above
2.b. If the box marked YES has been checked, report the estimate of 0
uninsured deposits determined by using your bank's method or
procedure
3. Has the reporting institution been consolidated with a parent
bank or savings association in that parent bank's or parent
savings association's Call Report or Thrift Financial Report? If so,
report the legal title and FDIC Certificate Number of the parent
bank or parent savings association:
<CAPTION>
FDIC Cert
No.
<S> <C> <C>
0
</TABLE>
-51-
<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Consolidated Report of Condition
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
Schedule RC-R--Regulatory Capital
This schedule must be completed by all banks as follows: Banks that reported
total assets of $1 billion or more in Schedule RC, item 12, for June 30, 1998,
must complete items 2 through 9 and Memoranda items 1 and 2. Banks with assets
of less than $1 billion must complete items 1 through 3 below or Schedule RC-R
in its entirety, depending on their response to item 1 below.
<TABLE>
<S> <C> <C>
1. Test for determining the extent to which Schedule RC-R must be
completed. To be completed only by banks with total assets of less YES/NO
than $1 billion. Indicate in the appropriate box at the right whether N/A
the bank has total capital greater than or equal to eight percent of
adjusted total assets
For purposes of this test, adjusted total assets equals total assets
less cash, U.S. Treasuries, U.S. Government agency obligations, and 80
percent of U.S. Government-sponsored agency obligations plus the
allowance for loan and lease losses and selected off-balance sheet
items as reported on Schedule RC-L (see instructions). If the box
marked YES has been checked, then the bank only has to complete items
2 and 3 below. If the box marked NO has been checked, the bank must
complete the remainder of this schedule. A NO response to item 1 does
not necessarily mean that the bank's actual risk-based capital ratio
is less than eight percent or that the bank is not in compliance with
the risk-based capital guidelines.
<CAPTION>
================================================================================
NOTE: All banks are required to complete items 2 and 3 below. See optional
worksheet for items 3.a through 3.f.
Dollar Amounts in Thousands
<S> <C> <C>
2. Portion of qualifying limited-life capital instruments (original
weighted average maturity of at least five years) that is
includible in Tier 2 capital:
2.a. Subordinated debt and intermediate term preferred stock 250,000
2.b. Other limited-life capital instruments 0
3. Amounts used in calculating regulatory capital ratios (report
amounts determined by the bank for its own internal
regulatory capital analyses consistent with applicable capital
standards):
3.a.1. Tier 1 capital 1,434,620
3.a.2. Tier 2 capital 930,906
</TABLE>
-52-
<PAGE>
<TABLE>
<S> <C> <C>
3.a.3. Tier 3 capital 0
3.b. Total risk-based capital 2,365,526
3.c. Excess allowance for loan and lease losses (amount that exceeds 0
1.25% of gross risk-weighted assets)
3.d.1. Net risk-weighted assets (gross risk-weighted assets, including 22,685,663
market risk equivalent assets, less excess allowance reported in
item 3.c above and all other deductions)
3.d.2. Market risk equivalent assets (included in item 3.d.(1) above) 0
3.e. Maximum contractual dollar amount of recourse exposure in low 0
level recourse transactions (to be completed only if the bank uses
the "direct reduction method" to report these transactions in
Schedule RC-R)
3.f. "Average total assets" (quarterly average reported in Schedule 18,785,038
RC-K, item 9, less all assets deducted from Tier 1 capital)
<CAPTION>
================================================================================
Items 4-9 and Memoranda items 1 and 2 are (Column A) (Column B)
to be completed by banks that answered NO Assets Credit
to item 1 above and by banks with total Recorded Equivalent
assets of $1 billion or more. on the Amount of
Balance Off-
Sheet Balance
Sheet Items
<S> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance sheet items assigned to the
Zero
percent risk category:
4.a. Assets recorded on the balance sheet 470,448
4.b. Credit equivalent amount of off-balance sheet items 1,287
5. Assets and credit equivalent amounts of off-balance sheet items assigned to the 20
percent risk category:
5.a. Assets recorded on the balance sheet 4,875,289
5.b. Credit equivalent amount of off-balance sheet items 1,239,466
6. Assets and credit equivalent amounts of off-balance sheet items assigned to the 50
percent risk category:
6.a. Assets recorded on the balance sheet 1,532,730
6.b. Credit equivalent amount of off-balance sheet items 713,639
7. Assets and credit equivalent amounts of off-balance sheet items assigned to the 100
percent risk category:
7.a. Assets recorded on the balance sheet 12,733,093
</TABLE>
-53-
<PAGE>
<TABLE>
<S> <C> <C> <C>
7.b. Credit equivalent amount of off-balance sheet items 7,055,502
8. On-balance sheet asset values excluded from and deducted in the
calculation of the risk-based capital ratio 1,219,406
9. Total assets recorded on the balance sheet (sum of items 4.a, 5.a,
6.a, 7.a, and 8, column A) (must equal Schedule RC, item 12 plus items
4.b and 4.c) 20,830,966
<CAPTION>
================================================================================
Memoranda
Dollar Amounts in Thousands
<S> <C> <C>
1. Current credit exposure across all off-balance sheet 423,317
derivative
contracts covered by the risk-based capital standards
<CAPTION>
================================================================================
With a remaining maturitiy of
(Column B)
(Column A) Over one year (Column C)
One year or less through five years Over five years
<S> <C> <C> <C> <C>
2. Notional principal amounts of off-
balance sheet derivative contracts:
2.a. Interest rate contracts 4,685,678 16,550,227 8,198,555
2.b. Foreign exchange contracts 1,322,936 139,520 0
2.c. Gold contracts 0 0
2.d. Other precious metals contracts 0 0
2.e. Other commodity contracts 0 0
2.f. Equity derivative contracts 44,934 343,756 0
</TABLE>
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<PAGE>
SunTrust Bank, Atlanta FFIEC 031
1 PARK PLACE, N.E. Special Report - Loans to Officers
ATLANTA , GA 30303 for September 30, 1999
Certificate Number: 867
================================================================================
SPECIAL REPORT - LOANS TO EXECUTIVE OFFICERS (Complete as of each Call
Report Date)
The following information is required by Public Laws 90-44 and 102-242, but does
not constitute a part of the Report of Condition. With each Report of Condition,
these Laws require all banks to furnish a report of all loans or other
extensions of credit to their executive officers made since the date of the
previous Report of Condition. Data regarding individual loans or other
extensions of credit are not required. If no such loans or other extensions of
credit were made during the period, insert "none" against subitem (a). (Exclude
the first $15,000 of indebtedness of each executive officer under bank credit
card plan.) See Sections 215.2 and 215.3 of Title 12 of the Code of Federal
Regulations (Federal Reserve Board Regulation O) for the definitions of
"executive officer" and "extension of credit," respectively. Exclude loans and
other extensions of credit to directors and principal shareholders who are not
executive officers.
<TABLE>
<S> <C> <C> <C>
a. Number of loans made to executive officers since the
previous Call Report date 0
b. Total dollar amount of above loans (in thousands of
dollars) 0
c. Range of interest charged on
above loans (example: 9 3/4% = 9.75) 0.00% 0.00%
</TABLE>
-55-
<PAGE>
SunTrust Bank, Atlanta
1 PARK PLACE, N.E.
ATLANTA , GA 30303 FFIEC 031
Certificate Number: 867 Consolidated Report of Condition
for September 30, 1999
Optional Narrative Statement Concerning the Amounts Reported in the Reports of
Condition and Income
The management of the reporting bank may, if it wishes, submit a brief narrative
statement on the amounts reported in the Reports of Condition and Income. This
optional statement will be made available to the public, along with the publicly
available data in the Reports of Condition and Income, in response to any
request for individual bank report data. However, the information reported in
column A and in all of memorandum item 1 of Schedule RC-N is regarded as
confidential and will not be released to the public. BANKS CHOOSING TO SUBMIT
THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT DOES NOT CONTAIN THE
NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK CUSTOMERS, REFERENCES TO THE
AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN SCHEDULE RC-N, OR ANY OTHER
INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD
COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing not to make a
statement may check the "No comment" box below and should make no entries of any
kind in the space provided for the narrative statement; i.e., DO NOT enter in
this space such phrases as "No statement," "Not applicable," "N/A," "No
comment," and "None".
The optional statement must be entered on this sheet. The statement should not
exceed 100 words. Further, regardless of the number of words, the statement must
not exceed 750 characters, including punctuation, indentation, and standard
spacing between words and sentences. If any submission should exceed 750
characters, as defined, it will be truncated at 750 characters with no notice to
the submitting bank and the truncated statement will appear as the bank's
statement both on agency computerized records and in computer-file releases to
the public. All information furnished by the bank in the narrative statement
must be accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statement's accuracy. The statement must be
signed, in the space provided below, by a senior officer of the bank who thereby
attests to its accuracy.
If, subsequent to the original submission, material changes are submitted for
the data reported in the Reports of Condition and Income, the existing narrative
statement will be deleted from the files, and from disclosure; the bank, at its
option, may replace it with a statement, under signature, appropriate to the
amended data.
The optional narrative statement will appear in agency records and in release to
the public exactly as submitted (or amended as described in the preceding
paragraph) by the management of the bank (except for the truncation of
statements exceeding the 750-character limit described above). THE STATEMENT
WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES FOR
ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT SIGNIFY THAT ANY
FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE
INFORMATION
-56-
<PAGE>
CONTAINED THEREIN. A STATEMENT TO THIS EFFECT WILL APPPEAR ON ANY PUBLIC RELEASE
OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE REPORTING BANK.
================================================================================
No Comment
BANK MANAGEMENT STATEMENT (please print or type clearly):
-57-
