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Exhibit 4.1
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ATMOS ENERGY CORPORATION,
Issuer,
to
SUNTRUST BANK,
Trustee
Indenture
Dated as of , 2000
Debt Securities
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ________, 2000
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Trust Indenture
Act Section Indenture Section
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(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
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TABLE OF CONTENTS
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PARTIES .................................................................................... 1
RECITALS OF THE COMPANY................................................................................. 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.......................... 1
SECTION 101. Definitions......................................................................... 1
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Act................................................................................. 2
Additional Amounts.................................................................. 2
Affiliate........................................................................... 2
Attributable Debt................................................................... 2
Authenticating Agent................................................................ 2
Authorized Newspaper................................................................ 2
Authorized Representative........................................................... 3
Bankruptcy Law...................................................................... 3
Board of Directors.................................................................. 3
Board Resolution.................................................................... 3
Book-Entry Security................................................................. 3
Business Day........................................................................ 3
Capital Stock....................................................................... 3
Commission.......................................................................... 3
Company............................................................................. 3
Company Request..................................................................... 4
Consolidated Net Tangible Assets.................................................... 4
Corporate Trust Office.............................................................. 4
corporation......................................................................... 4
covenant defeasance................................................................. 4
Custodian........................................................................... 4
Default............................................................................. 4
Defaulted Interest.................................................................. 4
defeasance.......................................................................... 4
Definitive Security................................................................. 4
Depository.......................................................................... 4
Euroclear........................................................................... 5
Event of Default.................................................................... 5
Exchange Act........................................................................ 5
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Final Maturity...................................................................... 5
Funded Indebtedness................................................................. 5
generally accepted accounting principles............................................ 5
Global Securities................................................................... 5
Government Obligations.............................................................. 5
Greeley Indenture................................................................... 5
guarantee........................................................................... 6
Holder.............................................................................. 6
incorporated provision.............................................................. 6
Indebtedness........................................................................ 6
Indenture........................................................................... 6
Indexed Security.................................................................... 6
interest............................................................................ 6
Interest Payment Date............................................................... 7
Lien................................................................................ 7
mandatory sinking fund payment...................................................... 7
Maturity............................................................................ 7
Non-Recourse Indebtedness........................................................... 7
Note Purchase Agreements............................................................ 8
Officers' Certificate............................................................... 8
Opinion of Counsel.................................................................. 8
Option to Elect Repayment........................................................... 8
Optional Reset Date................................................................. 8
optional sinking fund payment....................................................... 8
Original Issue Discount Security.................................................... 8
Original Stated Maturity............................................................ 8
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................................................................. 10
Repayment Date...................................................................... 10
Repayment Price..................................................................... 10
Reset Notice........................................................................ 10
Restricted Securities............................................................... 11
Restricted Subsidiary............................................................... 11
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Sale and Leaseback Transaction...................................................... 11
Securities.......................................................................... 11
Security Register................................................................... 11
Special Record Date................................................................. 11
Stated Maturity..................................................................... 11
Subsequent Interest Period.......................................................... 11
Subsidiary.......................................................................... 12
Trustee............................................................................. 12
United Cities Indenture............................................................. 12
United States....................................................................... 12
United States person................................................................ 12
Vice President...................................................................... 12
Yield to Maturity................................................................... 12
SECTION 102. Compliance Certificates and Opinions................................................ 13
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SECTION 103. Form of Documents Delivered to Trustee.............................................. 13
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SECTION 104. Acts of Holders..................................................................... 14
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SECTION 105. Notices, etc. to Trustee and Company................................................ 15
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SECTION 106. Notice to Holders; Waiver........................................................... 15
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SECTION 107. Conflict of any Provision of Indenture with Trust Indenture Act..................... 16
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SECTION 108. Effect of Headings and Table of Contents............................................ 16
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SECTION 109. Successors and Assigns.............................................................. 16
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SECTION 110. Separability Clause................................................................. 17
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SECTION 111. Benefits of Indenture............................................................... 17
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SECTION 112. Governing Law....................................................................... 17
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SECTION 113. Legal Holidays...................................................................... 17
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SECTION 114. No Recourse Against Others.......................................................... 17
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ARTICLE TWO SECURITY FORMS.................................................................. 18
SECTION 201. Forms Generally..................................................................... 18
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SECTION 202. Form of Trustee's Certificate of Authentication..................................... 18
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SECTION 203. Securities Issuable in Global Form.................................................. 19
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SECTION 204. Form of Legend for Book-Entry Securities............................................ 20
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ARTICLE THREE THE SECURITIES.................................................................. 20
SECTION 301. Amount Unlimited; Issuable in Series................................................ 20
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SECTION 302. Denominations....................................................................... 23
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SECTION 303. Execution, Authentication, Delivery and Dating...................................... 23
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SECTION 304. Book-Entry Securities............................................................... 25
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SECTION 305. Temporary Securities................................................................ 27
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SECTION 306. Registration, Registration of Transfer and Exchange................................. 27
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SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.................................... 28
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SECTION 308. Payment of Interest; Interest Rights Preserved; Optional Interest Reset............. 29
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SECTION 309. Optional Extension of Stated Maturity............................................... 32
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SECTION 310. Persons Deemed Owners............................................................... 33
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SECTION 311. Cancellation........................................................................ 33
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SECTION 312. Computation of Interest............................................................. 34
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SECTION 313. CUSIP Numbers....................................................................... 34
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ARTICLE FOUR SATISFACTION AND DISCHARGE...................................................... 34
SECTION 401. Satisfaction and Discharge of Indenture............................................. 34
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SECTION 402. Application of Trust Money.......................................................... 35
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ARTICLE FIVE REMEDIES........................................................................ 36
SECTION 501. Events of Default................................................................... 36
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................. 37
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..................... 38
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SECTION 504. Trustee May File Proofs of Claim.................................................... 39
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities......................... 40
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SECTION 506. Application of Money Collected...................................................... 40
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SECTION 507. Limitation on Suits.............................................................. 40
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest........ 41
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SECTION 509. Restoration of Rights and Remedies............................................... 41
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SECTION 510. Rights and Remedies Cumulative................................................... 42
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SECTION 511. Delay or Omission Not Waiver..................................................... 42
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SECTION 512. Control by Holders............................................................... 42
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SECTION 513. Waiver of Past Defaults.......................................................... 42
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SECTION 514. Undertaking for Costs............................................................ 43
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SECTION 515. Waiver of Stay or Extension Laws................................................. 43
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ARTICLE SIX THE TRUSTEE.................................................................... 44
SECTION 601. Notice of Defaults............................................................... 44
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SECTION 602. Certain Rights of Trustee........................................................ 44
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SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities................... 46
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SECTION 604. May Hold Securities.............................................................. 46
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SECTION 605. Money Held in Trust.............................................................. 46
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SECTION 606. Compensation and Reimbursement................................................... 46
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SECTION 607. Conflicting Interests............................................................ 47
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SECTION 608. Corporate Trustee Required; Eligibility; Conflicting Interests................... 47
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SECTION 609. Resignation and Removal; Appointment of Successor................................ 48
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SECTION 610. Acceptance of Appointment by Successor........................................... 49
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SECTION 611. Merger, Conversion, Consolidation or Succession to Business...................... 50
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SECTION 612. Appointment of Authenticating Agent.............................................. 51
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SECTION 613. Preferential Collection of Claims Against Company................................ 53
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ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............................. 53
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SECTION 701. Disclosure of Names and Addresses of Holders..................................... 53
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SECTION 702. Reports by Trustee............................................................... 53
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SECTION 703. Reports by Company............................................................... 53
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ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE........................... 54
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms............................. 54
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SECTION 802. Rights and Duties of Successor Corporation....................................... 55
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SECTION 803. Securities to be Secured in Certain Events....................................... 55
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ARTICLE NINE SUPPLEMENTAL INDENTURES........................................................ 56
SECTION 901. Supplemental Indentures Without Consent of Holders............................... 56
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SECTION 902. Supplemental Indentures with Consent of Holders.................................. 57
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SECTION 903. Execution of Supplemental Indentures............................................. 58
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SECTION 904. Effect of Supplemental Indentures................................................ 59
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SECTION 905. Conformity with Trust Indenture Act.............................................. 59
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SECTION 906. Reference in Securities to Supplemental Indentures............................... 59
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SECTION 907. Notice of Supplemental Indentures................................................ 59
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ARTICLE TEN COVENANTS...................................................................... 59
SECTION 1001. Payment of Principal, Premium and Interest....................................... 59
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SECTION 1002. Maintenance of Office or Agency.................................................. 60
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SECTION 1003. Money for Security Payments to Be Held in Trust.................................. 60
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SECTION 1004. Statement as to Compliance....................................................... 62
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SECTION 1005. Corporate Existence.............................................................. 62
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SECTION 1006. Limitations on Liens............................................................. 62
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SECTION 1007. Limitation on Sale and Leaseback Transactions.................................... 64
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SECTION 1008. Additional Amounts............................................................... 64
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SECTION 1009. Waiver of Certain Covenants...................................................... 65
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ARTICLE ELEVEN REDEMPTION OF SECURITIES....................................................... 65
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SECTION 1101. Applicability of Article......................................................... 65
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SECTION 1102. Election to Redeem; Notice to Trustee............................................ 66
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SECTION 1103. Selection by Trustee of Securities to Be Redeemed................................ 66
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SECTION 1104. Notice of Redemption............................................................. 66
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SECTION 1105. Deposit of Redemption Price...................................................... 67
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SECTION 1106. Securities Payable on Redemption Date............................................ 67
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SECTION 1107. Securities Redeemed in Part...................................................... 68
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ARTICLE TWELVE SINKING FUNDS.................................................................. 68
SECTION 1201. Applicability of Article......................................................... 68
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities............................ 69
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SECTION 1203. Redemption of Securities for Sinking Fund........................................ 69
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ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS................................................. 70
SECTION 1301. Applicability of Article......................................................... 70
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SECTION 1302. Repayment of Securities.......................................................... 70
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SECTION 1303. Exercise of Option............................................................... 71
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SECTION 1304. When Securities Presented for Repayment Become Due and Payable................... 71
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SECTION 1305. Securities Repaid in Part........................................................ 72
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ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE............................................. 72
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance..................... 72
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SECTION 1402. Defeasance and Discharge......................................................... 72
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SECTION 1403. Covenant Defeasance.............................................................. 73
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SECTION 1404. Conditions to Defeasance or Covenant Defeasance.................................. 73
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SECTION 1405. Deposited Money and Government Obligations to Be
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Held in Trust; Other Miscellaneous Provisions.................................... 75
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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, 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
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.
<PAGE>
3
"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 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.
"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.
"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
<PAGE>
4
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
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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, 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.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"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.
<PAGE>
5
"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, 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 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
<PAGE>
6
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
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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 Section 301, exclusive, however, of any provisions or terms
which do not relate to such series, regardless of when such provisions or terms
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.
<PAGE>
7
"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.
"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
<PAGE>
8
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, supplemented or otherwise modified from time to
time, 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.
"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.
"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.
<PAGE>
9
"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 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
<PAGE>
10
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.
"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.
<PAGE>
11
"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 Net Tangible 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 mean the Securities authenticated and delivered under such
Indenture for such series, exclusive, however, of the Securities of any series
authenticated and delivered under any other Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"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.
<PAGE>
12
"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.
"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)
<PAGE>
13
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;
(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.
<PAGE>
14
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. 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
<PAGE>
15
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,
(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
<PAGE>
16
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.
-------------
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.
<PAGE>
17
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.
--------------
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, to 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.
<PAGE>
18
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.
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, as Trustee
By ________________________________
Authorized Representative
<PAGE>
19
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 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.
<PAGE>
20
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.
------------------------------------
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) and (2) 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;
<PAGE>
21
(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;
(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;
<PAGE>
22
(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;
(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 (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
<PAGE>
23
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 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:
<PAGE>
24
(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 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 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
<PAGE>
25
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.
---------------------
(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. 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
Clearstream International. 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
<PAGE>
26
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
Depository 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.
(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 this Indenture or the Securities.
<PAGE>
27
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.
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
<PAGE>
28
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 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 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
<PAGE>
29
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 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
<PAGE>
30
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 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.
<PAGE>
31
(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 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
<PAGE>
32
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 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
<PAGE>
33
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) 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 Depository, as a Holder, with respect to
such Global Security or impair, as between such Depository and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depository (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
<PAGE>
34
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.
-----------------------
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
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
<PAGE>
35
(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 with respect to such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture as to
such series, 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
<PAGE>
36
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 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
<PAGE>
37
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 Law 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.
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
<PAGE>
38
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(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.
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.
<PAGE>
39
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,
(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.
<PAGE>
40
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:
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;
<PAGE>
41
(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.
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.
<PAGE>
42
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.
------------------
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 in respect of such series 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 of such series, or
<PAGE>
43
(2) in respect of a covenant or provision of such series 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 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.
<PAGE>
44
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):
(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;
<PAGE>
45
(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 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
<PAGE>
46
this Indenture shall extend to the Trustee's officers, directors, agents
and employees. Such immunities and protections and right to
indemnification, together with the Trustees 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:
<PAGE>
47
(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 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.
<PAGE>
48
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 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.
<PAGE>
49
(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 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
<PAGE>
50
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing 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.
(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
<PAGE>
51
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 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.
<PAGE>
52
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company 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
<PAGE>
53
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
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
<PAGE>
54
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 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 this 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.
<PAGE>
55
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 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 Indebtedness of the Company now existing or hereafter
created which is not subordinate to the Securities) equally and ratably with (or
prior to) the Indebtedness which upon such event 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
<PAGE>
56
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
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
<PAGE>
57
(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
(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 of the series 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 applicable to such series or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture amendment or waiver
-------- -------
shall, without the consent of the Holder of each Outstanding Security of such
series 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
<PAGE>
58
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
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section 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 as applicable to a 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.
<PAGE>
59
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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, as to 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.
<PAGE>
60
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain, as to each series of Securities, in each
Place of Payment for each series of Securities an office or agency where
Securities of such series may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served.
The Company 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 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 series) 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
<PAGE>
61
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 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.
<PAGE>
62
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.
-------------------
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 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 this 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.
<PAGE>
63
(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 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 or the Note Purchase Agreements.
(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
<PAGE>
64
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 15% of Consolidated Net Tangible Assets.
SECTION 1007. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
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
<PAGE>
65
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
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
in accordance with this Article.
<PAGE>
66
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 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.
--------------------
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:
<PAGE>
67
(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,
(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 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 (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
<PAGE>
68
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, 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 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 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 been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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70
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 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
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money sufficient to pay the
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.
<PAGE>
71
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 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.
<PAGE>
72
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.
----------
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 Securities or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to such series
of 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 series of Outstanding Securities, which shall
thereafter be deemed to be "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
<PAGE>
73
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 series of Outstanding Securities:
(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
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74
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.
(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.
<PAGE>
75
(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) 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 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
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76
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.
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77
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, as Trustee
By:____________________________
Name:
Title:
