As filed with the Securities and Exchange Commission
on November 16, 1995
Registration No. 33-63895
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
Registration Statement Under
the Securities Act of 1933
SOUTHWESTERN ENERGY COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Arkansas 71-0205415
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1083 Sain Street, P. O. Box 1408,
Fayetteville, Arkansas 72702-1408
Telephone: (501) 521-1141
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Stanley D. Green
Southwestern Energy Company
1083 Sain Street, P. O. Box 1408,
Fayetteville, Arkansas 72702-1408
Telephone: (501) 521-1141
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Stephen H. Shalen James Duncan Phyfe
Cleary, Gottlieb, Steen & Hamilton Davis Polk & Wardwell
One Liberty Plaza 450 Lexington Avenue
New York, New York 10006 New York , New York 10017
________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this
Registration Statement.
________________
If the only securities being registered on this form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box.
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If any of the securities being registered on this form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box.
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If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering.
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If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
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If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.
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_________________________________________
The Registrant hereby amends this Registration statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission acting
pursuant to said Section 8(a) may determine.
<PAGE>
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been filed
with the Securities and Exchange Commission. These securities may
not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy
nor shall there be any sale of these securities in any State in which
such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such State.
Subject to Completion, dated November 16, 1995
PROSPECTUS
$250,000,000
Southwestern Energy Company
SENIOR DEBENTURES
Southwestern Energy Company (the "Company") may offer
from time to time, together or separately, in one or more series,
debentures, notes or other unsecured obligations (the "Debt
Securities") of the Company. The aggregate initial offering
price of the Debt Securities offered by the Company hereby will
not exceed $250,000,000. The Debt Securities will be offered at
prices and on terms to be determined at the time such Debt
Securities are offered for sale. The Debt Securities will be
unsecured and will rank prior to any subordinated indebtedness of
the Company.
When a particular series of Debt Securities is offered, a
prospectus supplement (each, a "Prospectus Supplement") together
with this Prospectus will be delivered setting forth the terms of
such Debt Securities, including, where applicable, the specific
designation of such series of Debt Securities, aggregate
principal amount, maturity, rate or rates of any interest,
interest commencement date, interest payment date, record date,
any redemption provisions, any sinking fund provisions,
denominations, any currency for the payment of, or any index to
be used for determining the amount of any payment of, principal
or interest, acceleration provisions, covenants and events of
default, whether such series of Debt Securities is issuable in
the form of one or more Global Debt Securities ("Global Debt
Securities"), whether the Debt Securities are subject to
defeasance, the identity of the registrar and any paying agent,
the identity of the Trustee, any listing on a securities
exchange, the initial public offering price, methods of
distribution and any other specific terms in connection with the
offering and sale of such Debt Securities.
The Company's common stock is listed on the New York
Stock Exchange under the symbol SWN.
______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
______________
The Company may sell Debt Securities to or through
underwriters, through dealers or agents, or directly to other
purchasers. If any underwriters, dealers or agents are involved
in the sale of Debt Securities in respect of which this
Prospectus is being delivered, the names of such underwriters,
dealers or agents, the amount proposed to be purchased by them,
and any compensation to such underwriters, dealers or agents,
will be set forth in the applicable Prospectus Supplement. The
net proceeds to the Company will also be set forth in the
applicable Prospectus Supplement. See "Plan of Distribution."
----------
MORGAN STANLEY & CO.
Incorporated
----------
November __, 1995
No dealer, salesman or other peon has been authorized to
give any information or to make any representation not contained
in or incorporated by reference in this Prospectus and, if given
or made, such information or representation must not be relied
upon as having been authorized by the Company or any underwriter
or dealer. This Prospectus does not constitute an offer to sell
or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it is
unlawful to make such an offer in such jurisdiction. Neither the
delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that the
information herein is correct as of any time subsequent to the
date hereof or that there has been no change in the affairs of
the Company since such date.
______________
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports, proxy statements and
other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other
information, including the documents incorporated by reference
herein, may be inspected and copied at prescribed rates at the
public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Regional Offices of the Commission located at Seven World Trade
Center, Suite 1300, New York, New York 10048 and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material are also available by mail from the
Public Reference Branch of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. In addition, such material may
also be inspected and copied at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed a registration statement on Form
S-3 (herein, together with all amendments and exhibits, the
"Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Debt
Securities offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement,
certain portions of which are omitted in accordance with the
rules and regulations of the Commission. For further information
with respect to the Company and the Debt Securities, reference is
made to the Registration Statement and the exhibits filed as a
part thereof. Statements contained herein concerning any
document filed as an exhibit are not necessarily complete and, in
each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement. Each such
statement is qualified in its entirety by such reference.
______________
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the
Commission (File no. 1-8246) are incorporated in and made a part
of this Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for
the year ended December 31, 1994, filed pursuant to Section
13 of the Exchange Act, including the portions of the Company's
1994 Annual Report to Shareholders incorporated by reference
therein.
(b) The Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1995, June 30, 1995 and September
30, 1995 filed pursuant to Section 13 of the Exchange Act.
(c) The Company's Current Report on Form 8-K dated
February 23, 1995 filed pursuant to Section 13 of the
Exchange Act.
All documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be
deemed to be incorporated by reference in that Prospectus. Any
statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to
each person to whom a copy of this Prospectus is delivered, upon
oral or written request of any such person, a copy of any or all
of the documents incorporated herein by reference, other than the
exhibits to such documents (unless such exhibits are specifically
incorporated by reference in such documents). Requests for such
copies should be directed to Southwestern Energy Company 1083
Sain Street, P.O. Box 1408, Fayetteville, Arkansas 72702-1408,
Attn: Corporate Secretary, telephone (501) 521-1141.
THE COMPANY
The Company is a diversified natural gas company that
operates principally in three segments of the natural gas
industry: exploration and production; gas distribution; and gas
transmission. The Company conducts its primary activities
through four wholly owned subsidiaries.
The Company was organized in 1929 as a local distribution
company, operating in northwest Arkansas. In 1943, the Company
commenced a program of exploration for and development of natural
gas reserves in Arkansas for supply to its utility customers. In
1971, the Company initiated an exploration and development
program outside Arkansas, unrelated to the utility requirements.
Since that time, the Company's exploration and development
activities outside Arkansas have expanded. The exploration,
development and production activities are a separate, primary
business of the Company.
Exploration and production activities consist of ownership
of mineral interests in productive and undeveloped leases located
entirely within the United States. The Company engages in gas
and oil exploration and production through its subsidiaries,
SEECO, Inc. ("SEECO") and Southwestern Energy Production Company
("SEPCO"). SEECO operates exclusively in the state of Arkansas
and holds a large base of both developed and undeveloped gas
reserves and conducts an ongoing drilling program in the
historically productive Arkansas section of the Arkoma Basin.
SEPCO conducts an exploration program in areas outside Arkansas,
primarily in the Gulf Coast areas of Texas and Louisiana. SEPCO
also holds a block of leasehold acreage located on the Fort
Chaffee military reservation in western Arkansas and in other
parts of Arkansas away from the operating areas of the Company's
other subsidiaries.
The Company's subsidiary Arkansas Western Gas Company
("Arkansas Western") operates integrated natural gas distribution
systems in Arkansas and Missouri serving approximately 164,000
retail customers. Arkansas Western is the largest single
purchaser of SEECO's gas production.
Another subsidiary, Southwestern Energy Pipeline Company
("SWPL"), owns a 47.93% general partnership interest in the NOARK
Pipeline System, Limited Partnership ("NOARK"), a 258 mile long
intrastate natural gas transmission system that extends across
northern Arkansas. SWPL is also NOARK's operator.
The Company was incorporated on July 2, 1929, under the laws
of the State of Arkansas and is an exempt holding company under
the Public Utility Holding Company Act of 1935.
The principal executive offices of the Company are located
at 1083 Sain Street, Fayetteville, Arkansas 72703 and its
telephone number is (501) 521-1141.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus
Supplement, the Company intends to use the net proceeds from the
sale of the Debt Securities to repay currently outstanding
indebtedness and to fund a portion of the Company's capital
spending program.
RATIO OF EARNINGS TO FIXED CHARGES
The table below sets forth the ratios of earnings to fixed
charges of the Company and its consolidated subsidiaries for the
periods indicated.
Nine Months Ended Year ended
September 30, December 31,
----------------- ----------------------------------------
1995 1994 1994 1993 1992 1991 1990
Ratio of
earnings
to fixed
charges 1.7x 3.9x 3.6x 4.0x 3.1x 3.6x 2.8x
In the calculation of the ratio of earnings to fixed
charges, "earnings" consists of income before income taxes,
adjusted to add back fixed charges (excluding capitalized
interest relating to oil and gas properties), the amortization of
interest previously capitalized on oil and gas properties, and
the Company's 47.93% ownership share of the fixed charges of
NOARK. "Fixed charges" consists of interest on borrowings
(including capitalized interest), amortization of debt discount
and expense, a portion of rental expense determined to be
representative of the interest factor, and the Company's 60%
guaranty of the fixed charges of NOARK. A statement setting
forth the computation of the unaudited ratio of earnings to fixed
charges is filed as an exhibit to the registration statement of
which this Prospectus is a part.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt
Securities sets forth certain general terms and provisions of the
Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Debt Securities offered by any
Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered
will be described in the Prospectus Supplement relating to such
Debt Securities.
The Constitution of the State of Arkansas, the Company's
state of incorporation, requires shareholder approval of any
increases in the Company's authorized "bonded indebtedness."
(Although the term "bonded indebtedness" has not been defined by
Arkansas law, the Company has been advised by counsel that it
should treat the Debt Securities as "bonded indebtedness" within
the meaning of the Arkansas Constitution.) The Company's
shareholders have previously authorized the incurrence of up to
$200,000,000 in "bonded indebtedness", and the Company currently
has an aggregate of $84,000,000 of "bonded indebtedness"
outstanding. The Company has given notice of its intent to repay
$18,000,000 of "bonded indebtedness" by November 17, 1995;
thereafter the Company would be authorized to issue up to
$134,000,000 in Debt Securities without further action by its
shareholders.
The Debt Securities are to be issued in one or more
series under an Indenture dated as of December 1, 1995 (the
"Indenture"), between the Company and The First National Bank of
Chicago as Trustee (the "Trustee"). The Debt Securities offered
pursuant to this Prospectus will be limited to U.S. $250,000,000
aggregate principal amount (or (i) its equivalent (based on the
applicable exchange rate at the time of issue), if Debt
Securities are issued with principal amounts denominated in one
or more foreign currencies or currency units as shall be
designated by the Company, or (ii) such greater amount, if Debt
Securities are issued at an original issue discount, as shall
result in aggregate gross proceeds of U.S. $250,000,000 to the
Company). The statements herein relating to the Debt Securities
and the Indenture are summaries and are subject to the detailed
provisions of the Indenture. A copy of the form of Indenture is
filed as an exhibit to the Registration Statement of which this
Prospectus is a part. The following summaries of certain
provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to,
all of the provisions of the Indenture, including the definitions
therein of certain terms capitalized in this Prospectus.
Whenever particular Sections or defined terms of the Indenture
are referred to herein or in a Prospectus Supplement, such
Sections or defined terms are incorporated herein or therein by
reference.
General
The Debt Securities will rank as to priority of payment
equally with all other outstanding unsubordinated and unsecured
indebtedness of the Company. The Indenture does not limit the
aggregate amount of Debt Securities which may be issued
thereunder, nor does it limit the incurrence or issuance of other
secured or unsecured debt of the Company.
The Indenture provides that the Debt Securities may be
issued from time to time in one or more series. The Company may
authorize the issuance and provide for the terms of a series of
Debt Securities pursuant to a supplemental indenture or pursuant
to a resolution of its Board of Directors, any duly authorized
committee of the Board of Directors or any committee of officers
or other representatives of the Company duly authorized by the
Board of Directors for such purpose. The Indenture provides the
Company with the ability to "reopen" a previous issue of a series
of Debt Securities and to issue additional Debt Securities of
such series. (Section 3.1 of the Indenture.)
Reference is made to the Prospectus Supplement relating to
the particular series of Debt Securities being offered thereby
for the terms of such Debt Securities, including, where
applicable: (1) the specific designation of such Debt
Securities; (2) any limit upon the aggregate principal amount of
such Debt Securities; (3) the date or dates on which the
principal of and premium, if any, on such Debt Securities is
payable or the method of determining such date or dates; (4) the
rate or rates (which may be fixed, variable or zero) at which
such Debt Securities will bear interest, if any, or the method of
calculating such rate or rates; (5) the date or dates from which
interest, if any, will accrue or the method by which such date or
dates will be determined; (6) the date or dates on which
interest, if any, will be payable and the record date or dates
therefor; (7) the place or places where principal of, premium, if
any, and interest, if any, on such Debt Securities will be
payable; (8) the period or periods within which, the price or
prices at which, the currency in which, and the other terms and
conditions upon which, such Debt Securities may be redeemed, in
whole or in part, at the option of the Company; (9) the
obligation, if any, of the Company to redeem or purchase such
Debt Securities pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the
option of a holder and the period or periods within which, the
price or prices at which, and the other terms and conditions upon
which, such Debt Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation; (10) the
denominations in which such Debt Securities are authorized to be
issued; (11) the currency for which Debt Securities may be
purchased or in which Debt Securities may be denominated and/or
the currency in which such Debt Securities are stated to be
payable; (12) if the amount of payments of principal of and
premium, if any, or interest, if any, on such Debt Securities
may be determined with reference to an index, formula or other
method (which index, formula or other method may be based on a
currency other than that in which such Debt Securities are stated
to be payable), the index, formula or other method by which such
amount shall be determined; (13) if the amount of payments of
principal of and premium, if any, or interest, if any, on such
Debt Securities may be determined with reference to an index,
formula or other method based on the prices of securities or
commodities, with reference to changes in the prices of
particular securities or commodities or otherwise by application
of a formula, the index, formula or other method by which such
amount shall be determined; (14) if other than the entire
principal amount thereof, the portion of the principal amount of
such Debt Securities which will be payable upon declaration of
the acceleration of the maturity thereof or the method by which
such portion shall be determined; (15) the person to whom any
interest on any such Debt Security shall be payable if other than
the person in whose name such Debt Security is registered on the
applicable record date; (16) provisions, if any, granting special
rights to the holders of Debt Securities upon the occurrence of
such events as may be specified; (17) any addition to, or
modification or deletion of, any Event of Default or any covenant
of the Company specified in the Indenture with respect to such
Debt Securities; (18) any additional amounts the Company will pay
in respect of the Debt Securities or any option of the Company to
redeem the Debt Securities; (19) whether the Debt Securities will
be registered or bearer Debt Securities; (20) the date any Debt
Securities will be dated if other than the date of issuance; (21)
the forms of the Debt Securities, and coupons, if any; (22) the
application, if any, of such means of defeasance as may be
specified for such Debt Securities; (23) the identity of the
registrar and any paying agent; (24) whether such Debt Securities
are to be issued in whole or in part in the form of one or more
temporary or permanent global securities and, if so, the identity
of the depository for such global security or securities and
whether interests in such Debt Securities in global form may be
exchanged for definitive certificated Debt Securities; and (25)
any other special terms pertaining to such Debt Securities.
Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities will not be listed on any
securities exchange. (Section 3.1 of the Indenture.)
Unless otherwise specified in the applicable Prospectus
Supplement, Debt Securities will be issued only in fully
registered form without coupons or in the form of one or more
Global Debt Securities as specified below under "Global Debt
Securities." (Section 2.3 of the Indenture.) Unless the
Prospectus Supplement relating thereto specifies otherwise, Debt
Securities denominated in U.S. dollars will be issued only in
denominations of U.S. $1,000 and any integral multiple thereof.
(Section 3.2 of the Indenture.) The Prospectus Supplement
relating to Debt Securities denominated in a foreign or composite
currency will specify the authorized denominations thereof.
Where Debt Securities of any series are issued in bearer form,
the special restrictions and considerations, including special
offering restrictions and special federal income tax
considerations, applicable to any such Debt Securities and the
payment on and transfer and exchange of such Debt Securities will
be described in the applicable Prospectus Supplement. Bearer
Debt Securities will be transferable by delivery. (Section 3.5
of the Indenture.)
Debt Securities may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at
a rate which at the time of issuance is below market rates.
Certain federal income tax consequences and special
considerations applicable to any such Debt Securities will be
described in the applicable Prospectus Supplement.
If the amount of payments of principal of and premium, if
any, or any interest on Debt Securities of any series is
determined with reference to any type of index or formula or
changes in prices of particular securities or commodities, the
federal income tax consequences, specific terms and other
information with respect to such Debt Securities and such index
or formula and securities or commodities will be described in the
applicable Prospectus Supplement.
If the principal of and premium, if any, or any interest on
Debt Securities of any series are payable in a foreign or
composite currency, the restrictions, elections, federal income
tax consequences, specific terms and other information with
respect to such Debt Securities and such currency will be
described in the applicable Prospectus Supplement.
Payment, Registration, Transfer and Exchange
Unless otherwise provided in the applicable Prospectus
Supplement, payments in respect of the Debt Securities will be
made in the designated currency at the office or agency of the
Company maintained for that purpose as the Company may designate
from time to time, except that, at the option of the Company,
interest payments, if any, on Debt Securities in registered form
may be made (i) by checks mailed to the holders of Debt
Securities entitled thereto at their registered addresses or (ii)
by wire transfer to an account maintained by the person entitled
thereto as specified in the register. (Section 3.7(a) and 9.2 of
the Indenture.) Unless otherwise indicated in an applicable
Prospectus Supplement, payment of any installment of interest on
Debt Securities in registered form will be made to the person in
whose name such Debt Security is registered at the close of
business on the regular record date for such interest. (Section
3.7(a) of the Indenture.)
Payment in respect of Debt Securities in bearer form will
be made in the currency and in the manner designated in the
Prospectus Supplement, subject to any applicable laws and
regulations, at such paying agencies outside the United States as
the Company may appoint from time to time. The paying agents
outside the United States initially appointed by the Company for
a series of Debt Securities will be named in the Prospectus
Supplement. The Company may at any time designate additional
paying agents or rescind the designation of any paying agents,
except that, if Debt Securities of a series are issuable as
Registered Securities, the Company will be required to maintain
at least one paying agent in each Place of Payment for such
series and, if Debt Securities of a series are issuable as Bearer
Securities, the Company will be required to maintain a paying
agent in a Place of Payment outside the United States where Debt
Securities of such series and any coupons appertaining thereto
may be presented and surrendered for payment. (Section 9.2 of
the Indenture.)
Unless otherwise provided in the applicable Prospectus
Supplement, Debt Securities in registered form will be
transferable or exchangeable at the agency of the Company
maintained for such purpose as designated by the Company from
time to time. (Sections 3.5 and 9.2 of the Indenture.) Debt
Securities may be transferred or exchanged without service
charge, other than any tax or other governmental charge imposed
in connection therewith. (Section 3.5 of the Indenture.)
Global Debt Securities
The Debt Securities of a series may be issued in whole or
in part in the form of one or more fully registered global
securities (a "Registered Global Security") that will be
deposited with a depository (the "Depository") or with a nominee
for the Depository identified in the applicable Prospectus
Supplement. In such a case, one or more Registered Global
Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal
amount of outstanding Debt Securities of the series to be
represented by such Registered Global Security or Securities.
Unless and until it is exchanged in whole or in part for Debt
Securities in definitive certificated form, a Registered Global
Security may not be registered for transfer or exchange except as
a whole by the Depository for such Registered Global Security to
a nominee of such Depository or by a nominee of such Depository
to such Depository or another nominee of such Depository or by
such Depository or any such nominee to a successor Depository for
such series or a nominee of such successor Depository and except
in the circumstances described in the applicable Prospectus
Supplement. (Section 3.5 of the Indenture.)
The specific terms of the depository arrangement with
respect to any portion of a series of Debt Securities to be
represented by a Registered Global Security will be described in
the applicable Prospectus Supplement. The Company expects that
the following provisions will apply to depository arrangements.
Upon the issuance of any Registered Global Security, and
the deposit of such Registered Global Security with or on behalf of
the Depository for such Registered Global Security, the
Depository will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the
accounts of institutions ("Participants") that have accounts with
the Depository or its nominee. The accounts to be credited will
be designated by the underwriters or agents engaging in the
distribution of such Debt Securities or by the Company, if such
Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in a Registered Global Security
will be limited to Participants or persons that may hold interest
through Participants. Ownership of beneficial interests by
Participants in such Registered Global Security will be shown on,
and the transfer of such beneficial interests will be effected
only through, records maintained by the Depository for such
Registered Global Security or by its nominee. Ownership of
beneficial interests in such Registered Global Security by
persons that hold through Participants will be shown on, and the
transfer of such beneficial interests within such Participants
will be effected only through, records maintained by such
Participants. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such
securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests
in such Registered Global Securities.
So long as the Depository for a Registered Global Security,
or its nominee, is the registered owner of such Registered Global
Security, such Depository or such nominee, as the case may be,
will be considered the sole owner or holder of the Debt
Securities represented by such Registered Global Security for all
purposes under the Indenture. Unless otherwise specified in the
applicable Prospectus Supplement and except as specified below,
owners of beneficial interests in such Registered Global Security
will not be entitled to have Debt Securities of the series
represented by such Registered Global Security registered in
their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form
and will not be considered the holders thereof for any purposes
under the Indenture. (Section 3.8 of the Indenture.)
Accordingly, each person owning a beneficial interest in such
Registered Global Security must rely on the procedures of the
Depository and, if such person is not a Participant, on the
procedures of the Participant through which such person owns its
interest, to exercise any rights of a holder under the Indenture.
The Depository may grant proxies and otherwise authorize
Participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a holder
is entitled to give or take under the Indenture. The Company
understands that, under existing industry practices, if the
Company requests any action of holders or any owner of a
beneficial interest in such Registered Global Security desires to
give any notice or take any action a holder is entitled to give
or take under the Indenture, the Depository would authorize the
Participants to give such notice or take such action, and
Participants would authorize beneficial owners owning through
such Participants to give such notice or take such action or
would otherwise act upon the instructions of beneficial owners
owning through them.
Unless otherwise specified in the applicable Prospectus
Supplement, payments with respect to principal, premium, if any,
and interest, if any, on Debt Securities represented by a
Registered Global Security registered in the name of a Depository
or its nominee will be made by the Company through a paying agent
to such Depository or its nominee, as the case may be, as the
registered owner of such Registered Global Security.
The Company expects that the Depository for any Debt
Securities represented by a Registered Global Security, upon
receipt of any payment of principal, premium or interest, will
immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in
the principal amount of such Registered Global Security as shown
on the records of such Depository. The Company also expects that
payments by Participants to owners of beneficial interests in
such Registered Global Security held through such Participants
will be governed by standing instructions and customary
practices, as is now the case with the securities held for the
accounts of customers registered in "street names", and will be
the responsibility of such Participants. None of the Company,
the Trustee or any agent of the Company or the Trustee shall have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial interests
of a Registered Global Security, or for maintaining, supervising
or reviewing any records relating to such beneficial interests.
(Section 3.8 of the Indenture.)
Unless otherwise specified in the applicable Prospectus
Supplement, if the Depository for any Debt Securities represented
by a Registered Global Security is at any time unwilling or
unable to continue as Depository and a successor Depository is
not appointed by the Company within 90 days, the Company will
issue such Debt Securities in definitive certificated form in
exchange for such Registered Global Security. In addition, the
Company may at any time and in its sole discretion determine not
to have any of the Debt Securities of a series represented by one
or more Registered Global Securities and, in such event, will
issue Debt Securities of such series in definitive certificated
form in exchange for all of the Registered Global Security or
Securities representing such Debt Securities. (Section 3.5 of
the Indenture.) Debentures so issued in definitive certificated
form will be issued in denominations of $1,000 and integral
multiples thereof and will be issued in registered form only,
without coupons.
The Debt Securities of a series may also be issued in whole
or in part in the form of one or more bearer global securities (a
"Bearer Global Security") that will be deposited with a
depository, or with a nominee for such depository, identified in
the applicable Prospectus Supplement. Any such Bearer Global
Securities may be issued in temporary or permanent form.
(Section 3.4 of the Indenture.) The specific terms and
procedures, including the specific terms of the depository
arrangement, with respect to any portion of a series of Debt
Securities to be represented by one or more Bearer Global
Securities will be described in the applicable Prospectus
Supplement.
Certain Definitions
"Attributable Debt" means, as to a lease under which any
Person is at the time liable that is required to be classified
and accounted for as a Capitalized Lease Obligation on a Person's
balance sheet under GAAP, 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 primary term thereof, discounted from the respective
due dates thereof to such date at the rate per annum equal to the
interest rate implicit in such lease. The net amount of rent
required to be paid under any such lease for such period is the
aggregate amount of rent payable by lessee with respect to such
period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water
rates and similar expenses or any amount required to be paid by
such lessee thereunder contingent upon the amount of revenues (or
other similar contingent amounts). In the case of any lease
which is terminable by the lessee upon the payment of a penalty,
such net amount shall also include the amount of such penalty,
but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so
terminated. Notwithstanding the foregoing, the term Attributable
Debt excludes any amounts in respect of any Sale and Leaseback
Transaction which the Company or a Subsidiary is permitted to
enter into in accordance with the provisions described in the
second and third sentences under the caption "Limitation on Sale
and Leaseback Transactions".
"Capitalized Lease Obligation" means, as applied to any
Person, the rental obligation, as aforesaid, under any lease of
any Property (whether real, personal or mixed) the discounted
present value of the rental obligations of such Person as lessee
under which, in conformity with GAAP, is required to be
capitalized on the balance sheet of that Person.
"Consolidated Net Tangible Assets" means, with respect to
the Company as at any date, the total assets of the Company as
they appear on the most recently prepared consolidated balance
sheet of the Company as of the end of a fiscal quarter, less (i)
all liabilities shown on such consolidated balance sheet that are
classified and accounted for as current liabilities or that
otherwise would be considered current liabilities under GAAP; and
(ii) all assets shown on such consolidated balance sheet that are
classified and accounted for as intangible assets of the Company
or that otherwise would be considered intangible assets under
GAAP, including, without limitation, franchises, patents and
patent applications, trademarks, brand names and goodwill.
"Funded Debt" means all indebtedness for borrowed money owed
or guaranteed by the Company or any of its Subsidiaries and any
other indebtedness which, under GAAP, would appear as indebtedness
on the most recent consolidated balance sheet of the Company,
which matures by its terms more than 12 months from the date of
such consolidated balance sheet or which matures by its terms in
less than 12 months but by its terms is renewable or extendible
beyond 12 months from the date of such consolidated balance sheet
at the option of the borrower.
"GAAP" means generally accepted accounting principles in
the United States as in effect on the date of application thereof.
"Government Obligations" means securities which are (i)
direct obligations of the United States for the payment of which
its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States the full and timely payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank 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 on or principal of the Government Obligation evidenced
by such depository receipt.
"Lien" means any mortgage, pledge, lien, charge, security
interest, conditional sale or other title retention agreement or
other encumbrance of any nature whatsoever.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or
intangible.
"Sale and Leaseback Transaction" means any direct or
indirect arrangement with any Person or to which any such Person
is a party, providing for the leasing to the Company or a
Subsidiary of any Property, whether owned at the date of the
Indenture or thereafter acquired, which has been or is to be sold
or transferred by the Company or such Subsidiary to such Person
or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property.
"Secured Debt" means any indebtedness for borrowed money
incurred, assumed or guaranteed after the date of the Indenture
by the Company or a Subsidiary that is secured by a Lien.
"Subsidiary" of any Person means any Person of which at
least a majority of capital stock having ordinary voting power for
the election of directors or other governing body of such Person is
owned, directly or indirectly, by such Person directly or through
one or more Subsidiaries of such Person.
Certain Covenants
Limitation on Liens. The Company will not, and will not
permit any Subsidiary to, incur, assume or guarantee any
indebtedness for borrowed money secured by a Lien on any
Property, if the sum, without duplication, of (a) the aggregate
principal amount of all Secured Debt and (b) all Attributable
Debt in respect of Sale and Leaseback Transactions (other than
certain excluded Sale and Leaseback Transactions) exceeds 15% of
the Company's Consolidated Net Tangible Assets, unless the
Company provides that the Debt Securities shall be secured
equally and ratably with (or, at the option of the Company, prior
to) such Secured Debt. The provisions described in the foregoing
sentence do not apply to indebtedness secured by the following
Liens:
(i) (A) Liens existing as of the date of the
Indenture or (B) Liens relating to a contract that was entered into
by the Company or any Subsidiary prior to the date of the Indenture;
(ii) Liens on any Property existing at the time of
acquisition thereof (whether such acquisition is direct or by
acquisition of stock, assets or otherwise) by the Company or any
of its Subsidiaries;
(iii) Liens upon or with respect to any Property
(including any contract rights relating thereto) acquired, constructed,
refurbished or improved by the Company or any of its Subsidiaries
(including, but not limited to, Liens to secure all or any part
of the cost of oil, gas or mineral exploration, drilling, mining,
extraction, refining or processing or development of, or
construction, alteration or repair of any building, equipment,
facility or other improvement on, all or any part of such
property, including any pipeline financing) after the date of the
Indenture which are created, incurred or assumed
contemporaneously with, or within 360 days after, the latest to
occur of the acquisition (whether by acquisition of stock, assets
or otherwise), completion of construction, refurbishment or
improvement, or the commencement of commercial operation, of such
Property (or, in the case of Liens on contract rights, the
completion of construction or the commencement of commercial
operation of the facility to which such contract rights relate,
regardless of the date when such contract was entered into) to
secure or provide for the payment of any part of the purchase
price of such Property or the cost of such construction,
refurbishment or improvement; provided, however, that in the case
of any such construction, refurbishment or improvement, the Lien
shall relate only to indebtedness reasonably incurred to finance
such construction, refurbishment or improvement;
(iv) Liens securing indebtedness owing by any
Subsidiary to the Company or to any other Subsidiary;
(v) Liens in connection with the sale or other transfer in
the ordinary course of business of (A) crude oil, natural gas,
other petroleum hydrocarbons or other minerals in place for a
period of time until, or in an amount such that, the purchaser or
other transferee will realize therefrom a specified amount of
money (however determined) or a specified amount of such
minerals, or (B) any other interest in property of the character
commonly referred to as a "production payment";
(vi) Liens on current assets to secure any indebtedness
maturing (including any extensions or renewals thereof) not more
than one year from the date of the creation of such Lien; and
(vii) Liens for the sole purpose of extending, renewing
or replacing in whole or in part the indebtedness secured thereby
referred to in the foregoing clauses (i) to (vi), inclusive, or
in this clause (vii); provided, however, that the Liens excluded
pursuant to this clause (vii) shall be excluded only in an amount
not to exceed the principal amount of indebtedness so secured at
the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or part
of the Property subject to the lien so extended, renewed or
replaced (plus refurbishment of or improvements on or to such
Property).
Limitation on Sale and Leaseback Transactions. Neither
the Company nor any of its Subsidiaries may enter into, assume,
guarantee or otherwise become liable with respect to any Sale and
Leaseback Transaction involving any Property, if the latest to
occur of the acquisition, the completion of construction or the
commencement of commercial operation of such Property shall have
occurred more than 180 days prior thereto, unless after giving
effect thereto the sum, without duplication, of (a) the aggregate
principal amount of all Secured Debt and (b) all Attributable
Debt in respect of Sale and Leaseback Transactions does not
exceed 15% of the Company's Consolidated Net Tangible Assets.
This restriction shall not apply to any Sale and Leaseback
Transaction if, within 180 days from the effective date of such
Sale and Leaseback Transaction, the Company or such Subsidiary
applies an amount not less than the greater of (i) the net
proceeds of the sale of such Property leased pursuant to such
arrangement or (ii) the fair value of such Property to retire its
Funded Debt, including, for this purpose, any currently maturing
portion of such Funded Debt, or to purchase other property having
a fair value at least equal to the fair value of the Property leased
in such Sale and Leaseback Transaction. This restriction also does
not apply to any Sale and Leaseback Transaction (A) between the Company
and any Subsidiary or between any Subsidiaries, (B) entered into
prior to the date of the Indenture, or (C) for which, at the time
the transaction is entered into, the term of the related lease to
the Company or such Subsidiary of the Property sold pursuant to
such transaction is three years or less.
Consolidation, Merger or Sale by the Company
The Company shall not consolidate or merge with or into, or
transfer or lease all or substantially all of its assets to, any
Person unless (i) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or which
acquires the Company's assets, is organized and existing under
the laws of the United States, any state thereof or the District
of Columbia, (ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or which
acquires the Company's assets, expressly assumes all of the
obligations of the Company under the Debt Securities and the
Indenture, and (iii) immediately after giving effect to the
transaction, no Default or Event of Default shall have occurred
and be continuing. Upon any such consolidation, merger or sale,
the successor Person formed by such consolidation, or into which
the Company is merged or to which such sale is made, shall
succeed to, and be substituted for the Company under the
Indenture. (Section 7.1 of the Indenture.)
The Indenture contains no covenants or other specific
provisions to afford protection to holders of the Debt Securities
in the event of a highly leveraged transaction or a change in
control of the Company, except to the limited extent described
above.
Events of Default, Notice and Certain Rights on Default
The Indenture provides that, if an Event of Default
specified therein occurs with respect to the Debt Securities of
any series and is continuing, the Trustee for such series or the
holders of 25% in aggregate principal amount of all of the
outstanding Debt Securities of that series, by written notice to
the Company (and to the Trustee for such series, if notice is
given by such holders of Debt Securities), may declare the
principal of (or, if the Debt Securities of that series are
Original Issue Discount Securities, such portion of the principal
amount specified in the Prospectus Supplement) and accrued
interest on all the Debt Securities of that series to be due and
payable. (Section 5.2 of the Indenture.)
Events of Default with respect to Debt Securities of any
series are defined in the Indenture as being: (a) default for 30
days in payment of any interest on any Debt Security of that
series or any coupon appertaining thereto or any additional
amount payable with respect to Debt Securities of such series as
specified in the applicable Prospectus Supplement when due; (b)
default in payment of principal, or premium, if any, at maturity
or on redemption or otherwise, or in the making of a mandatory
sinking fund payment of any Debt Securities of that series when
and as due; (c) default for 90 days after notice to the Company
by the Trustee for such series, or by the holders of 25% in
aggregate principal amount of the Debt Securities of such series
then outstanding, in any material respect in the performance of
any other agreement in the Debt Securities of that series, in the
Indenture (or in any supplemental indenture or board resolution
referred to therein) under which the Debt Securities of that
series may have been issued; (d) default resulting in
acceleration of other indebtedness for money borrowed of the
Company where the aggregate principal amount so accelerated
exceeds $15 million and such acceleration is not rescinded or
annulled within 30 days after the written notice thereof to the
Company by the Trustee or to the Company and the Trustee by the
holders of 25% in aggregate principal amount of the Debt
Securities of such series then outstanding; provided that such
Event of Default will be cured or waived if (i) the default that
resulted in the acceleration of such other indebtedness for money
borrowed is cured or waived and (ii) the acceleration is
rescinded or annulled; and (e) certain events of
bankruptcy, insolvency or reorganization of the Company.
(Section 5.1 of the Indenture.) Events of Default with respect
to a specified series of Debt Securities may be added to the
Indenture and, if so added, will be described in the applicable
Prospectus Supplement. (Sections 3.1 and 5.1(7) of the
Indenture.)
The Indenture provides that the Trustee will, subject to
certain exceptions, within 90 days after the occurrence of a
Default with respect to the Debt Securities of any series, give
to the holders of the Debt Securities of that series notice of
all Defaults known to it unless such Default shall have been
cured or waived. "Default" means any event which is, or after
notice or passage of time or both, would be, an Event of Default.
(Section 1.1 of the Indenture.)
The Indenture provides that the holders of a majority in
aggregate principal amount of the outstanding Debt Securities of
each series affected (with each such series voting as a class)
may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee for such
series, or exercising any trust or power conferred on such
Trustee. (Section 5.8 of the Indenture.)
The Indenture includes a covenant that the Company will
file annually with the Trustee a certificate as to the Company's
compliance with all conditions and covenants of the Indenture.
(Section 9.7 of the Indenture.)
The holders of a majority in aggregate principal amount
of the outstanding Debt Securities of any series by notice to the
Trustee may waive, on behalf of the holders of all Debt
Securities of such series, any past Default or Event of Default
with respect to that series and its consequences except (i) a
Default or Event of Default in the payment of the principal of,
premium, if any, or interest, if any, on any Debt Security, or
(ii) a covenant or provision of the Indenture that cannot be
modified or amended without the consent of each holder of a Debt
Security of such series. (Section 5.7 of the Indenture.)
Modification of the Indenture
The Indenture contains provisions permitting the Company
and the Trustee to enter into one or more supplemental indentures
without the consent of the holders of any of the Debt Securities
in order: (i) to evidence the succession of another Person to
the Company and the assumption of the covenants of the Company in
the Indenture and in the Debt Securities by a successor to the
Company; (ii) to add to the covenants of the Company or surrender
any right or power of the Company; (iii) to add additional Events
of Default with respect to all or any series of Debt Securities;
(iv) to add or change any provisions to such extent as necessary
to permit or facilitate the issuance of Debt Securities in bearer
form or in global form; (v) to change or eliminate any provision
affecting Debt Securities not yet issued; (vi) to secure the Debt
Securities; (vii) to establish the form or terms of Debt
Securities; (viii) to evidence and provide for successor
Trustees; (ix) if allowed without penalty under applicable laws
and regulations, to permit payment in respect of Debt Securities
in bearer form in the United States; (x) to correct or supplement
any inconsistent provisions or to make any other provisions with
respect to matters or questions arising under the Indenture;
provided that such action does not adversely affect the interests
of any holder of Debt Securities of any series; or (xi) to cure
any ambiguity or correct any mistake. (Section 8.1 of the
Indenture.)
The Indenture also contains provisions permitting the
Company and the Trustee, with the consent of the holders of a
majority in aggregate principal amount of the outstanding Debt
Securities adversely affected by such supplemental indenture
(with the Debt Securities of each series voting as a class), to
execute supplemental indentures adding any provisions to or
changing or eliminating any of the provisions of the Indenture or
any supplemental indenture or modifying the rights of the holders
of Debt Securities of such series; provided, however, that no
such supplemental indenture may, without the consent of the
holder of each Debt Security so affected: (i) change the time for
payment of principal or premium, if any, or interest on any Debt
Security; (ii) reduce the principal of, or any installment of
principal of, or premium, if any, or the rate of interest on any
Debt Security, or change the manner in which the amount of any of
the foregoing is determined; (iii) reduce the amount of premium,
if any, payable upon the redemption of any Debt Security; (iv)
reduce the amount of principal payable upon acceleration of the
maturity of any Original Issue Discount Security; (v) change the
currency in which any Debt Security or any premium or interest
thereon is payable; (vi) change the index, securities or
commodities with reference to which or the formula by which the
amount of principal or any premium or interest thereon is
determined; (vii) impair the right to institute suit for the
enforcement of any payment on or after the maturity or redemption
of any Debt Security; (viii) reduce the percentage in principal
amount of the outstanding Debt Securities affected thereby the
consent of whose holders is required for modification or
amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain
defaults; (ix) change the obligation of the Company to maintain
an office or agency in the places and for the purposes specified
in the Indenture; or (x) modify the provisions relating to waiver
of certain defaults or any of the foregoing provisions. (Section
8.2 of the Indenture.)
Defeasance
Defeasance and Discharge. Unless the Prospectus Supplement
relating to the Debt Securities of a series provides otherwise,
the Company at its option will be deemed to have paid and will be
discharged from any and all obligations in respect of such Debt
Securities (except for, among other matters, certain obligations
to register the transfer or exchange of the Debt Securities, to
replace stolen, lost or mutilated Debt Securities and coupons, to
maintain paying agencies and to hold certain monies for payment
in trust) if, among other things, (a) the Company has deposited
with the Trustee, in trust, Government Obligations that through
the payment of interest and principal in respect thereof in
accordance with their terms will provide money or a combination
of money and Government Obligations in an amount sufficient to
pay in the currency in which such Debt Securities are payable all
the principal of, and interest on, such Debt Securities on the
dates such payments are due in accordance with the terms of such
Debt Securities, (b) the Company has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel to the effect that
the holders of such Debt Securities will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of the
Company's exercise of its option under this "Defeasance and Discharge"
provision and will be subject to U.S. federal income tax on the
same amounts in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had
not occurred, which Opinion of Counsel must be based upon (x) a ruling
of the U.S. Internal Revenue Service to the same effect or (y) a
change in applicable U.S. federal income tax law after the date of
the Indenture such that a ruling is no longer required and (c) no
Default or Event of Default shall have occurred or be continuing,
and such deposit shall not result in a breach or violation of, or
constitute a default under, any other material agreement or
instrument to which the Company is a party or by which the Company
is bound. The Prospectus Supplement will more fully describe the
provisions, relating to such discharge or termination of obligations.
(Sections 4.3 and 4.6 of the Indenture.)
Defeasance of Certain Covenants. Unless the Prospectus
Supplement relating to the Debt Securities of a series provides
otherwise, the Company at its option need not comply with certain
restrictive covenants of the Indenture (including those described
above under "Certain Covenants") upon, among other things, the
deposit with the Trustee, in trust, of money and/or Government
Obligations that through the payment of interest and principal in
respect thereof in accordance with their terms will provide money
or a combination of money and Government Obligations in an amount
sufficient to pay in the currency in which such Debt Securities
are payable all the principal of, and interest on, such Debt
Securities on the dates such payments are due in accordance with
the terms of such Debt Securities, the satisfaction of the
provisions described in clauses (c) and (d) of the preceding
paragraph and the delivery by the Company to the Trustee of an
Opinion of Counsel to the effect that, among other things, the
holders of such Debt Securities will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of such
deposit and defeasance of certain covenants and will be subject
to U.S. federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred. (Sections 4.5 and 4.6
of the Indenture.)
The Trustee
The First National Bank of Chicago is the Trustee under the
Indenture. The Company may also maintain banking and other
commercial relationships with the Trustee and its affiliates in
the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may, from time to time, sell Debt Securities
(1) through underwriters or dealers, (2) directly to one or more
purchasers, or (3) through agents. A Prospectus Supplement will
set forth the terms of the offering of the Debt Securities
offered thereby, including the name or names of any underwriters,
the purchase price of the Debt Securities, and the proceeds to
the Company from the sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public
offering price, any discounts or concessions allowed or reallowed
or paid to dealers, and any securities exchange or market on
which the Debt Securities may be listed. Only underwriters so
named in such Prospectus Supplement are deemed to be underwriters
in connection with the Debt Securities offered thereby.
If underwriters are used in the sale, the Debt Securities
will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Debt Securities
will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all the Debt
Securities of the series offered by the Prospectus Supplement if
any of the Debt Securities are purchased. Any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Debt Securities may also be sold directly by the Company
or through agents designated by the Company from time to time. Any
agent involved in the offering and sale of Debt Securities in
respect of which this Prospectus is delivered will be named, and
any commissions payable by the Company to such agent will be set
forth in the Prospectus Supplement. Unless otherwise indicated
in the related Prospectus Supplement, any such agent will be
acting on a best-efforts basis for the period of its appointment.
Debt Securities offered may be a new issue of securities
with no established trading market. Any underwriters to whom
such Debt Securities are sold by the Company for public offering
and sale may make a market in such Debt Securities, but such
underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can
be given as to the liquidity of or the trading markets for any
such Debt Securities.
Agents and underwriters may be entitled under agreements
entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments
which the agents or underwriters may be required to make in
respect thereof. Agents and underwriters may engage in
transactions with, or perform services for, the Company in the
ordinary course of business.
EXPERTS
The audited consolidated financial statements and schedules
incorporated by reference in this Prospectus and elsewhere in the
registration statement have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with
respect thereto, and are incorporated herein in reliance on said
firm as experts in giving said reports.
<PAGE>
[Back cover]
SOUTHWESTERN ENERGY COMPANY
[LOGO]
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC Registration Fee $ 86,207
Printing and Engraving 20,000
Accountants' Fees and Expenses 30,000
Legal Fees and Expenses 75,000
Blue Sky Fees and Expenses 20,000
Rating Agency Fees 136,000
Miscellaneous 2,793
-------
Total $370,000
=======
Item 15. Indemnification of Officers and Directors.
Section 4-27-850 of the Arkansas Code Annotated provides
that Registrant shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or proceeding (other than
an action by or in the right of the Registrant) by reason of the
fact that be is or was a director, officer, employee or agent of
the Registrant, against expenses, judgments, fines and amounts
paid in settlements reasonably incurred by him in connection with
such action or proceeding if he acted in good faith in a manner
reasonably believed to be in or not opposed to the best interests
of the Registrant. In addition, the Registrant shall have the
power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Registrant to
procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Registrant
against expenses actually reasonably incurred by him in
connection with the defense or settlement of such action if he
acted in good faith in a manner reasonably believed to be in or
not opposed to the best interests of the Registrant and except
that no indemnification shall be made in respect of any claim as
to which such person shall have been adjudged to be liable for
negligence or misconduct unless and only to the extent the court
in which such action was brought shall determine that, despite
the adjudication of liability, but in view of all circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Article VII, Section 6, of the Registrant's Bylaws provides
that the Registrant's officers and directors shall be indemnified
to the fullest extent permitted by law in connection with any
actual or threatened action or proceeding arising out of their
service to the Company (including service to a subsidiary of the
Company) or to any other organization at the Company's request.
Item 16. Exhibits
Exhibit No. Description
1.1 - Form of Underwriting Agreement.
4.1 - Form of Indenture, including form of Debt
Securities
4.2 - Amended and Restated Articles of Incorporation
of Registrant (incorporated by reference to
Exhibit 3 to Annual Report on Form 10-K
for the year ended December 31, 1993).
4.3 - Bylaws of Registrant (incorporated by reference to
Exhibit 3 to Annual Report on Form 10-K for the year
ended December 31, 1994).
5.1 - Opinion of Cleary, Gottlieb, Steen & Hamilton.
5.2 - Opinion of Jeffrey L. Dangeau, Assistant Secretary
of the Company.
12 - Statement regarding computation of ratio of earnings
to fixed charges.
24.1 - Consent of Arthur Andersen LLP.
24.2 - Consent of Cleary, Gottlieb, Steen & Hamilton
(contained in, and incorporated by reference to,
Exhibit 5.1 to this Registration Statement).
24.3 - Consent of Jeffrey L Dangeau, Assistant Secretary
of the Company (contained in, and incorporated by
reference to, Exhibit 5.2 to this Registration).
25 - Power of Attorney (included on signature page).*
26 - Statement of Eligibility of Trustee on Form T-1.*
________________
* Previously filed.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement.
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (i) and (ii) above do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's Annual Report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification by the Registrant for liabilities
arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification by the Registrant against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fayetteville, State of Arkansas, on
November 16, 1995.
SOUTHWESTERN ENERGY COMPANY
By /s/ Gregory D. Kerley
------------------------------
Gregory D. Kerley
Vice President - Treasurer
and Chief Accounting Officer
Pursuant to the requirements of the Securities Act of 1933,
this amendment to the registration statement has been signed by the
following persons in the capacities indicated on November 16, 1995:
Signature Title
Director, Chairman, and Chief
- ---------------------------- Executive Officer
Charles E. Scharlau*
Executive Vice President -
- ---------------------------- Finance and Corporate Development,
Stanley D. Green* and Chief Financial Officer
Vice President - Treasurer and
- ---------------------------- Secretary, and Chief Accounting
/s/ Gregory D. Kerley Officer
Director
- ----------------------------
John Paul Hammerschmidt*
Director
- ----------------------------
Robert L. Howard*
Director
- ----------------------------
Kenneth R. Mourton*
Director
- ----------------------------
Charles E. Sanders*
* By /s/ Gregory D. Kerley
-----------------------------
Gregory D. Kerley,
Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequentially
Number Description Numbered
Page
1.1 - Form of Underwriting Agreement.
4.1 - Form of Indenture, including Form of Debt Securities.
4.2 - Amended and Restated Articles of Incorporation of
Registrant (incorporated by reference to Exhibit 3
to Annual Report on Form 10-K for the year ended
December 31, 1993).
4.3 - Bylaws of Registrant (incorporated by reference to
Exhibit 3 to Annual Report on Form 10-K for the year
ended December 31, 1994).
5.1 - Opinion of Cleary, Gottlieb, Steen & Hamilton.
5.2 - Opinion of Jeffrey L. Dangeau, Assistant Secretary
and General Counsel of the Company.
12 - Statement regarding computation of ratio of
earnings to fixed charges.
24.1 - Consent of Arthur Andersen LLP.
24.2 - Consent of Cleary, Gottlieb, Steen & Hamilton
(contained in, and incorporated by reference to,
Exhibit 5.1 to this Registration Statement).
24.3 - Consent of Jeffrey L. Dangeau, Assistant Secretary
of the Company (contained in, and incorporated by
reference to, Exhibit 5.2 to this Registration Statement).
25 - Power of Attorney (included on signature page).*
26 - Statement of Eligibility of Trustee on Form T-1.*
_________________
* Previously filed.
SOUTHWESTERN ENERGY COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(Debt Securities)
November __, 1995
From time to time, Southwestern Energy Company, an Arkansas
corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating
to the Debt Securities and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Securities pursuant to Rule 424 under the Securities Act of 1933,
as amended (the "Securities Act"). The term "Registration Statement" means
the registration statement, including the exhibits thereto, as amended to the
date of this Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein,
the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement," "amendment" and "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information relating
to the underwriting arrangements furnished to the Company in writing by an
Underwriter through the Manager expressly for use therein or (B) to that part
of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company listed in Exhibit A (each a
"Subsidiary") has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture or the Offered Securities,
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Offered Securities.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement).
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated as required.
(k) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(l) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(m) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(n) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
2. Terms of Public Offering. The Company is advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
3. Payment and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made in immediately
available funds to the Company at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Offered Securities registered in
such names and in such denominations as the Manager shall request in writing
not less than two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Offered
Securities to the Underwriters duly paid.
4. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement)
that, in the judgment of the Manager, is material and adverse and
that makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect that, to the best of his or her knowledge,
the events contemplated in clause (a)(i) above had not occurred and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Jeffrey L. Dangeau, Assistant Secretary for the Company,
dated the Closing Date, to the effect that:
(i) the Company and each Subsidiary has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ii) this Agreement has been duly authorized by all
necessary corporate action of the Company;
(iii) the Indenture has been duly authorized by all
necessary corporate action of the Company;
(iv) the Offered Securities have been duly authorized by
all necessary corporate action of the Company;
(v) the issuance and sale of the Offered Securities to the
Underwriters pursuant to this Agreement, the Indenture and the
Offered Securities (a) do not require any consent, approval,
authorization, registration or qualification of or with any
governmental authority of the State of Arkansas (except as to any
consent, approval, authorization, registration or qualification
that may be required under Arkansas securities or Blue Sky laws)
and (b) do not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any of the
agreements of the Company identified in Exhibit B hereto, the
Certificate of Incorporation or By-Laws of the Company, or any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Subsidiary;
(vi) the statements set forth (A) in Part II of the
Registration Statement under Item 15, (B) in "Item 3 - Legal
Proceedings" of the Company's most recent annual report on Form
10-K incorporated by reference in the Prospectus and (C) in "Item
1 - Legal Proceedings" and "Item 5" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred
to therein, fairly present the information called for with respect
to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein; and
(vii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits
to the Registration Statement that are not described, filed or
incorporated as required.
(d) The Underwriters shall have received on the Closing Date an
opinion of Cleary, Gottlieb, Steen & Hamilton, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) this Agreement has been duly executed and delivered by
the Company under the law of the State of New York;
(ii) the Indenture has been duly executed and delivered by
the Company, duly qualified under the Trust Indenture Act and,
assuming due authorization thereof by the Company, is a valid,
binding and enforceable agreement of the Company;
(iii) the Offered Securities, when executed and authenticated
in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, and assuming due authorization
thereof by the Company, will be entitled to the benefits of the
Indenture and will be valid, binding and enforceable obligations
of the Company;
(iv) the issuance and sale of the Offered Securities to the
Underwriters pursuant to this Agreement, and the execution and
delivery by the Company of, and the performance by the Company of
its obligations under this Agreement, the Indenture and the
Offered Securities do not require any consent, approval,
authorization, registration or qualification of or with any
governmental authority of the United States or the State of New
York except such as have been obtained or effected under the
Securities Act and the Trust Indenture Act (provided that such
counsel need express no opinion as to any consent, approval,
authorization, registration or qualification that may be required
under state securities or Blue Sky laws);
(v) the statements set forth in the Prospectus under the
captions "Description of Debt Securities", insofar as such
statements purport to summarize certain documents referred to
therein, fairly present the information called for with respect to
such documents and fairly summarize the matters referred to
therein; and
(vi) such counsel shall deliver a letter substantially to the
effect that (A) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and schedules included therein as
to which such counsel need not express any opinion) as of the
respective date of its filing, appeared on its face to be
appropriately responsive in all material respects to the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) no information has
come to such counsel's attention that has caused such counsel to
believe that (except for financial statements and schedules and
other financial and statistical data as to which such counsel need
not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement, when such
part became effective, contained and, as of the date such opinion
is delivered, contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (C) the Registration Statement (except for financial
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) at the time it became effective and the Prospectus
(except as aforesaid) as of the date such opinion is delivered,
appear on their face to be appropriately responsive in all
material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder
and (D) no information has come to such counsel's attention that
has caused such counsel to believe that (except for financial
statements and schedules and other financial and statistical data
as to which such counsel need not express any belief) the
Prospectus as of the date such opinion is delivered contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(e) The Underwriters shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, special counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in
subparagraphs (ii), (iii), (v) and clauses (B), (C) and (D) of
subparagraph (vi) of paragraph (d) above.
With respect to the subparagraph (vi) of paragraph (d)
above, Cleary, Gottlieb, Steen & Hamilton and Davis Polk & Wardwell may
state that their respective beliefs are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated by reference), but
are without independent check or verification, except as specified.
The opinions of Jeffrey L. Dangeau and Cleary, Gottlieb, Steen &
Hamilton described in paragraphs (c) and (d) above shall be rendered to
the Underwriters at the request of the Company and shall so state
therein. All of the opinions described above, insofar as they relate to
the validity, binding effect or enforceability of any agreement or
obligation of the Company, may state that they are being rendered subject
to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and to equitable principles of general
applicability (whether considered in a proceeding equity or at law), and
Cleary, Gottlieb, Steen & Hamilton and Davis Polk & Wardwell may rely as
to matters governed by the laws of Arkansas on the opinion of Jeffrey L.
Dangeau.
(f) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Underwriters, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish the Manager, without charge, one signed copy of
the Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated
by reference therein and any supplements and amendments thereto or to
the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish to
the Manager a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses the Manager will furnish
to the Company) to which Offered Securities may have been sold by the
Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to maintain such qualification for
as long as the Manager shall reasonably request, provided that in
connection therewith the Company shall not be required to file a general
consent to service of process in any jurisdiction or qualify to do
business in any jurisdiction where it is not so qualified.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earnings statement covering
a twelve month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such
earnings statement shall be made available not later than 120 days after
the close of the period covered thereby and in all other cases shall be
made available not later than 60 days after the close of the period
covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt securities of the
Company substantially similar to the Offered Securities (other than (i)
the Offered Securities and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Manager.
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto; (ii) the preparation, issuance and
delivery of the Offered Securities; (iii) the fees and disbursements of
the Company's counsel and accountants and of the Trustee and its
counsel; (iv) the qualification of the Offered Securities under state
securities or Blue Sky laws in accordance with the provisions of Section
5(d), including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection
with the preparation of any Blue Sky or Legal Investment Memoranda; (v)
the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement and all
amendments thereto and of any preliminary prospectus and the Prospectus
and any amendments or supplements thereto; (vi) the printing and
delivery to the Underwriters of copies of any Blue Sky or Legal
Investment Memoranda; (vii) any fees charged by rating agencies for the
rating of the Offered Securities; (viii) the filing fees and expenses,
if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. made in connection with the
Offered Securities and (ix) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
underwriting arrangements furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein, provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of an Underwriter or to the benefit
of any person controlling such Underwriter if the person asserting any such
losses, claims, damages or liabilities purchased Offered Securities from such
Underwriter and a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by such Underwriter or on such Underwriter's behalf to such
person, if required by law to have been so delivered, at or prior to the
written confirmation of the sale of any Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information relating
to the underwriting arrangements furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this
Section 6, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying
party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by the Manager, in the case of
parties indemnified pursuant to paragraph (a) above, and by the Company, in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) of this
Section 6. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and payment for
any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination
by notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Offered Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the amount of Offered Securities set forth opposite their
respective names in the Underwriting Agreement bears to the aggregate amount
of Offered Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to
this Section 8 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Offered Securities and the aggregate amount of Offered Securities with respect
to which such default occurs is more than one-tenth of the aggregate amount of
Offered Securities to be purchased on such date, and arrangements satisfactory
to the Manager and the Company for the purchase of such Offered Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may
be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
9. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
UNDERWRITING AGREEMENT
___________, 199_
Southwestern Energy Company
1083 Sain Street
P.O. Box 1408
Fayetteville, Arkansas 72702
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Southwestern Energy Company, an Arkansas corporation (the "Company"), proposes
to issue and sell [Currency and Principal Amount] aggregate initial offering
price of [Full title of Debt Securities] (the "Debt Securities"). (The Debt
Securities are also referred to herein as the "Offered Securities.") The Debt
Securities will be issued pursuant to the provisions of an Indenture dated as
of _______________, 1995 (the "Indenture") between the Company and The First
National Bank of Chicago, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Debt Securities
set forth below opposite their names at a purchase price of ____% of the
principal amount of Debt Securities [, plus accrued interest, if any, from
[Date of Offered Securities] to the date of payment and delivery]:
Principal Amount of
Name Debt Securities
Morgan Stanley & Co.
Incorporated
[Insert syndicate list]
Total . . . . . .
The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated November __, 1995, and the Prospectus Supplement dated
____________, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
[Other Terms:]
All provisions contained in the document entitled Southwestern
Energy Company Underwriting Agreement Standard Provisions (Debt Securities)
dated November __, 1995, a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part
of this Agreement to the same extent as if such provisions had been set forth
in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign
a copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
Acting severally on behalf of itself
and the several Underwriters named herein
By: _____________________________
Name:
Title:
Accepted:
SOUTHWESTERN ENERGY COMPANY
By: ___________________________
Name:
Title:
- -----------------------------------------------------------------
SOUTHWESTERN ENERGY COMPANY
to
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
INDENTURE
________________________________
Dated as of December 1, 1995
________________________________
Providing for Issuance of
Debt Securities in Series
- -----------------------------------------------------------------
<PAGE>
Reconciliation and tie between Indenture, dated as of November
__, 1995, and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
310(a)(1) 6.12
(a)(2) 6.12
(a)(3) TIA
(a)(4) Not applicable
(a)(5) TIA
(b) 6.10; 6.12(b); TIA
311(a) TIA
(b) TIA
312(a) 6.8
(b) TIA
(c) TIA
313(a) 6.7; TIA
(b) TIA
(c) TIA
(d) TIA
314(a) 9.6; 9.7; TIA
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) TIA
(f) TIA
315(a) 6.1
(b) 6.6
(c) 6.1
(d)(1) TIA
(d)(2) TIA
(d)(3) TIA
(e) TIA
316(a)(last sentence) 1.1
(a)(1)(A) 5.2; 5.8
(a)(1)(B) 5.7
(b) 5.9; 5.10
(c) TIA
317(a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.11
(b) TIA
(c) 1.11; TIA
____________________
This reconciliation and tie section does not constitute part of
the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . 1
1.2 Compliance Certificates and Opinions . . 9
1.3 Form of Documents Delivered to Trustee . 10
1.4 Acts of Holders . . . . . . . . . . . . . 11
1.5 Notices, etc., to Trustee and Company . . 12
1.6 Notice to Holders; Waiver . . . . . . . . 12
1.7 Headings and Table of Contents . . . . . 13
1.8 Successors and Assigns . . . . . . . . . 13
1.9 Separability . . . . . . . . . . . . . . 14
1.10 Benefits of Indenture . . . . . . . . . . 14
1.11 Governing Law . . . . . . . . . . . . . . 14
1.12 Legal Holidays . . . . . . . . . . . . . 14
ARTICLE 2 SECURITY FORMS . . . . . . . . . . . . . . . . . 14
2.1 Forms Generally . . . . . . . . . . . . . 14
2.2 Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . 15
2.3 Securities in Global Form . . . . . . . . 15
2.4 Form of Legend for Securities in
Global Form . . . . . . . . . . . . . . 16
ARTICLE 3 THE SECURITIES . . . . . . . . . . . . . . . . . 16
3.1 Amount Unlimited; Issuable in Series . . 16
3.2 Denominations . . . . . . . . . . . . . . 20
3.3 Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . . 20
3.4 Temporary Securities . . . . . . . . . . 22
3.5 Registration, Transfer and Exchange . . . 23
3.6 Replacement Securities . . . . . . . . . 27
3.7 Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . 28
3.8 Persons Deemed Owners . . . . . . . . . . 30
3.9 Cancellation . . . . . . . . . . . . . . 30
3.10 Computation of Interest . . . . . . . . . 31
3.11 CUSIP Numbers . . . . . . . . . . . . . . 31
3.12 Currency of Payment in Respect of
Securities. . . . . . . . . . . . . . . 31
ARTICLE 4 SATISFACTION, DISCHARGE AND DEFEASANCE . . . . . 31
4.1 Termination of Company s Obligations
Under the Indenture . . . . . . . . . . 31
4.2 Application of Trust Funds . . . . . . . 32
4.3 Applicability of Defeasance Provisions;
Company s Option to Effect Defeasance
or Covenant Defeasance . . . . . . . . 33
4.4 Defeasance and Discharge . . . . . . . . 33
4.5 Covenant Defeasance . . . . . . . . . . . 34
4.6 Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . 34
4.7 Deposited Money and Government
Obligations to Be Held in Trust . . . . 36
4.8 Repayment to Company . . . . . . . . . . 36
4.9 Indemnity for Government Obligations . . 36
ARTICLE 5 DEFAULTS AND REMEDIES . . . . . . . . . . . . . 36
5.1 Events of Default . . . . . . . . . . . . 36
5.2 Acceleration; Rescission and Annulment . 38
5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . 38
5.4 Trustee May File Proofs of Claim . . . . 39
5.5 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . 39
5.6 Delay or Omission Not Waiver . . . . . . 39
5.7 Waiver of Past Defaults . . . . . . . . . 39
5.8 Control by Majority . . . . . . . . . . . 40
5.9 Limitation on Suits by Holders . . . . . 40
5.10 Rights of Holders to Receive Payment . . 41
5.11 Application of Money Collected . . . . . 41
5.12 Restoration of Rights and Remedies . . . 41
5.13 Rights and Remedies Cumulative . . . . . 42
ARTICLE 6 THE TRUSTEE . . . . . . . . . . . . . . . . . . 42
6.1 Certain Duties and Responsibilities
of the Trustee . . . . . . . . . . . . 42
6.2 Rights of Trustee . . . . . . . . . . . . 42
6.3 Trustee May Hold Securities . . . . . . . 43
6.4 Money Held in Trust . . . . . . . . . . . 43
6.5 Trustee s Disclaimer . . . . . . . . . . 43
6.6 Notice of Defaults . . . . . . . . . . . 43
6.7 Reports by Trustee to Holders . . . . . . 44
6.8 Securityholder Lists . . . . . . . . . . 44
6.9 Compensation and Indemnity . . . . . . . 44
6.10 Replacement of Trustee . . . . . . . . . 45
6.11 Acceptance of Appointment by Successor . 46
6.12 Eligibility; Disqualification . . . . . . 48
6.13 Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . 48
6.14 Appointment of Authenticating Agent . . . 48
ARTICLE 7 CONSOLIDATION, MERGER OR SALE BY THE COMPANY . . 50
7.1 Consolidation, Merger or Sale of
Assets Permitted . . . . . . . . . . . 50
ARTICLE 8 SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . 50
8.1 Supplemental Indentures Without
Consent of Holders . . . . . . . . . . 51
8.2 Supplemental Indentures With Consent
of Holders. . . . . . . . . . . . . . . 52
8.3 Compliance with Trust Indenture Act . . . 53
8.4 Execution of Supplemental Indentures . . 53
8.5 Effect of Supplemental Indentures . . . . 53
8.6 Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . 53
ARTICLE 9 COVENANTS . . . . . . . . . . . . . . . . . . 54
9.1 Payment of Principal, Premium, if any,
and Interest. . . . . . . . . . . . . . 54
9.2 Maintenance of Office or Agency . . . . . 54
9.3 Money for Securities Payments to Be
Held in Trust; Unclaimed Money . . . . 55
9.4 Corporate Existence . . . . . . . . . . . 56
9.5 Insurance . . . . . . . . . . . . . . . . 56
9.6 Reports by the Company . . . . . . . . . 57
9.7 Annual Review Certificate; Notice of
Defaults or Events of Default . . . . . 57
9.8 Limitation on Liens . . . . . . . . . . . 58
9.9 Limitation on Sale and Leaseback
Transactions. . . . . . . . . . . . . . 59
9.10 Books of Record and Account; Compliance
with Law. . . . . . . . . . . . . . . . 60
9.11 Taxes . . . . . . . . . . . . . . . . . . 60
ARTICLE 10 REDEMPTION . . . . . . . . . . . . . . . . . . 61
10.1 Applicability of Article . . . . . . . . 61
10.2 Election to Redeem; Notice to Trustee . . 61
10.3 Selection of Securities to Be Redeemed . 61
10.4 Notice of Redemption . . . . . . . . . . 62
10.5 Deposit of Redemption Price . . . . . . . 63
10.6 Securities Payable on Redemption Date . . 63
10.7 Securities Redeemed in Part . . . . . . . 64
ARTICLE 11 SINKING FUNDS . . . . . . . . . . . . . . . . . 64
11.1 Applicability of Article . . . . . . . . 64
11.2 Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . 64
11.3 Redemption of Securities for Sinking Fund 65
<PAGE>
INDENTURE, dated as of December 1, 1995, from
Southwestern Energy Company, an Arkansas corporation (the
"Company"), to The First National Bank of Chicago, Trustee, a
national banking association (the "Trustee").
Recitals
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of
indebtedness ("Securities") to be issued in one or more series as
herein provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable
benefit of the Holders of the Securities:
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
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.
"Act" shall have the meaning set forth in Section
1.4(a).
"Affiliate" of any specified Person means any Person
directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person.
For 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.
"Agent" means any Paying Agent or Registrar.
"Attributable Debt" means, as to a lease under which
any Person is at the time liable that is required to be
classified and accounted for as a Capitalized Lease Obligation on
a Person's balance sheet under GAAP, 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 primary term thereof, discounted from the respective
due dates thereof to such date at the rate per annum equal to the
interest rate implicit in such lease. The net amount of rent
required to be paid under any such lease for such period shall be
the aggregate amount of rent payable by lessee with respect to
such period after excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar expenses or any amount
required to be paid by such lessee thereunder contingent upon the
amount of revenues (or other similar contingent amounts). In the
case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date
upon which it may be so terminated. Notwithstanding the
foregoing, the term Attributable Debt excludes any amounts in
respect of any Sale and Leaseback Transaction which the Company
or a Subsidiary is permitted to enter into in accordance with the
last sentence of Section 9.9 of this Indenture.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of
publication or in the English language, customarily published on
each Business Day whether or not published on Saturdays, Sundays
or holidays. Whenever successive publications in an Authorized
Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different
days of the week and in the same or different Authorized
Newspapers.
"Bankruptcy Law" shall have the meaning set forth in
Section 5.1.
"Bearer Security" means any Security issued hereunder
which is payable to bearer.
"Board" or "Board of Directors" means the Board of
Directors of the Company, or any other duly authorized committee
thereof.
"Board Resolution" means a copy of a resolution of the
Board of Directors, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of
the certificate, and delivered to the Trustee.
"Business Day" when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 3.1, each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or
executive order to close.
"Capitalized Lease Obligation" means, as applied to any
Person, the rental obligation under any lease of any Property
(whether real, personal or mixed) the discounted present value of
the rental obligations of such Person as lessee under which, in
conformity with GAAP, is required to be capitalized on the
balance sheet of that Person.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or, if at any time after the
execution of this 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 party named as the Company in the
first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter means such successor.
"Company Order" and "Company Request" mean,
respectively, a written order or request signed in the name of
the Company by two Officers, one of whom must be the Chairman of
the Board, the President, the Chief Financial Officer, the
Treasurer, the Assistant Treasurer, the Controller or a
Vice-President of the Company.
"Consolidated Net Tangible Assets" means, with respect
to the Company as at any date, the total assets of the Company as
they appear on the most recently prepared consolidated balance
sheet of the Company as of the end of a fiscal quarter, less (i)
all liabilities shown on such consolidated balance sheet that are
classified and accounted for as current liabilities or that
otherwise would be considered current liabilities under GAAP; and
(ii) all assets shown on such consolidated balance sheet that are
classified and accounted for as intangible assets of the Company
or that otherwise would be considered intangible assets under
GAAP, including, without limitation, franchises, patents and
patent applications, trademarks, brand names and goodwill.
"Corporate Trust Office" means the office of the
Trustee in Chicago, Illinois at which at any particular time its
corporate trust business shall be principally administered, which
office at the date hereof is located at One First National Plaza,
Suite 0126, Chicago, Illinois 60670-0126, Attention: Corporate
Trust Administration.
"Custodian" shall have the meaning set forth in Section
5.1.
"Default" means any event which is, or after notice or
passage of time, or both, would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth
in Section 3.7(b).
"Depository" when used with respect to the Securities
of or within any series issuable or issued in whole or in part in
global form, means the Person designated as Depository by the
Company pursuant to Section 3.1 until a successor Depository
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter shall mean or include each Person
which is then a Depository hereunder, and if at any time there is
more than one such Person, shall be a collective reference to
such Persons.
"Dollar" means the currency of the United States as at
the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" shall have the meaning set forth in
Section 5.1.
"Funded Debt" means all indebtedness for borrowed money
owed or guaranteed by the Company or any of its Subsidiaries and
any other indebtedness which, under GAAP, would appear as
indebtedness on the most recent consolidated balance sheet of the
Company, which matures by its terms more than 12 months from the
date of such consolidated balance sheet or which matures by its
terms in less than 12 months but by its terms is renewable or
extendible beyond 12 months from the date of such consolidated
balance sheet at the option of the borrower.
"GAAP" means generally accepted accounting principles
in the United States as in effect on the date of application
thereof.
"Government Obligations" means securities which are (i)
direct obligations of the United States for the payment of which
its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank 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 on or principal of the Government Obligation evidenced
by such depository receipt.
"Holder" means, with respect to a Bearer Security, a
bearer thereof or of a coupon appertaining thereto and, with
respect to a Registered Security, a person in whose name a
Security is registered on the Register.
"Indenture" means this Indenture as originally executed
or as amended or supplemented from time to time and shall include
the forms and terms of particular series of Securities
established as contemplated hereunder.
"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.
"Interest Payment Date" when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Lien" means any mortgage, pledge, lien, charge,
security interest, conditional sale or other title retention
agreement or other encumbrance of any nature whatsoever.
"Maturity" when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the
President, any Vice-President, the Chief Financial Officer, the
Treasurer, the Assistant Treasurer, the Controller, the Secretary
or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by an Officer who must be the
Chairman of the Board, the President, the Chief Financial
Officer, the Treasurer, the Assistant Treasurer, the Controller
or a Vice-President of the Company.
"Opinion of Counsel" means a written opinion from the
general counsel of the Company or other legal counsel who is
reasonably acceptable to the Trustee. Such counsel may be an
employee of or counsel to the Company.
"Original Issue Discount Security" means any Security
which provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provisions
therefor satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in
Sections 4.4 and 4.5, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided
in Article 4; and
(iv) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, or whether sufficient funds are
available for redemption or for any other purpose, and for the
purpose of making the calculations required by Section 313 of the
Trust Indenture Act, (a) the principal amount of any Original
Issue Discount Securities 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 5.2, and (b) 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 the Trustee knows to be
so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of, premium, if any, or interest on
any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of
a series from time to time the specific terms of which
Securities, including, without limitation, the rate or rates of
interest or formula for determining the rate or rates of interest
thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by
the Company upon the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the
Securities of or within any series, means the place or places
where the principal of, premium, if any, and interest on such
Securities are payable as specified or contemplated by Sections
3.1 and 9.2.
"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 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"principal amount", when used with respect to any
Security, means the amount of principal, if any, payable in
respect thereof at Maturity; provided, however, that when used
with respect to an Indexed Security in any context other than the
making of payments at Maturity, "principal amount" means the
principal face amount of such Indexed Security at original
issuance.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, in whole or in part, means the price at
which it is to be redeemed pursuant to this Indenture.
"Register" shall have the meaning set forth in Section
3.5.
"Registered Security" means any Security issued
hereunder and registered as to principal and interest in the
Register.
"Registrar" shall have the meaning set forth in Section
3.5.
"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 3.1.
"Responsible Officer", when used with respect to the
Trustee, shall mean the chairman or any vice chairman of the
board of directors, the chairman or any vice-chairman of the
executive committee of the board of directors, the chairman of
the trust committee, the president, any senior vice president,
any vice president, any assistant vice president, the secretary,
the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer,
the controller, any assistant controller, or any officer of the
Trustee customarily performing functions similar to those per-
formed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular
subject.
"Sale and Leaseback Transaction" means any direct or
indirect arrangement with any Person or to which any such Person
is a party, providing for the leasing to the Company or a
Subsidiary of any Property, whether owned at the date of this
Indenture or thereafter acquired, which has been or is to be sold
or transferred by the Company or such Subsidiary to such Person
or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property.
"Secured Debt" shall have the meaning set forth in
Section 9.8(a).
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture and more particularly means a
Security or Securities of the Company issued, authenticated and
delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
3.7.
"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 or in a coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at
least a majority of capital stock having ordinary voting power
for the election of directors or other governing body of such
Person is owned by such Person directly or through one or more
Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in effect on the date of this Indenture, except as
provided in Section 8.3.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor Trustee replaces it
pursuant to the applicable provisions of this Indenture, and
thereafter means such successor Trustee and if, at any time,
there is more than one Trustee, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with
respect to the Securities of any series as contemplated by
Section 3.1, the United States of America (including the States
and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with
respect to the Securities of any series as contemplated by
Section 3.1, a citizen, national 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 any
political subdivision thereof, or an estate or trust, the income
of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity,
calculated by the Company at the time of issuance of a series of
Securities or, if applicable, at the most recent determination of
interest on such series, in accordance with accepted financial
practice.
Section 1.2. 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 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 with respect to compliance
with a condition or covenant provided for in this Indenture
(other than pursuant to Sections 2.3 and 9.7) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant
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 condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
as 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 1.4. Acts of Holders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved
by the production of such Bearer Securities or by a certificate
executed by any trust company, bank, banker or other depository,
wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security
continues until (i) another such certificate or affidavit bearing
a later date issued in respect of the same Bearer security is
produced, (ii) such Bearer Security is produced to the Trustee by
some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security
is no longer Outstanding. The ownership of Bearer Securities may
also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be
proved by the Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(f) If the Company shall solicit from the Holders 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 Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record
at the close of business on such record date shall be deemed to
be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or
consent 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.
Section 1.5. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it
at Southwestern Energy Company, 1083 Sain Street, P.O. Box
1408, Fayetteville, Arkansas 72702-1408, Attention: Chief
Financial Officer or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, (i) if any
of the Securities affected by such event are Registered
Securities, such notice to the Holders thereof shall be
sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each
such Holder affected by such event, at his address as it appears
in the Register, within the time prescribed for the giving of
such notice, and (ii) if any of the Securities affected by such
event are Bearer Securities, notice to the Holders thereof shall
be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published once in
an Authorized Newspaper in New York, New York, and in such other
city or cities, if any, as may be specified as contemplated by
Section 3.1.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders
of Bearer Securities given as provided herein. In any case where
notice is given to Holders by publication, neither the failure to
publish such notice, nor any defect in any notice so published,
shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to
Holders of Registered Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice as provided above, then such notification as shall be
made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to
give any notice by publication in the manner herein required,
then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
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 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 1.7. 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 1.8. Successors and Assigns. All covenants
and agreements in this Indenture by the Company shall bind its
successor and assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of
this Indenture or the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.10. Benefits of Indenture. Nothing in this
Indenture or in the Securities, expressed or implied, shall give
to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.11. Governing Law. THIS INDENTURE, THE
SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. This Indenture is subject to the Trust Indenture Act and
if any provision hereof limits, qualifies or conflicts with the
Trust Indenture Act, the Trust Indenture Act shall control.
Section 1.12. Legal Holidays. In any case where any
Interest Payment Date, Redemption Date, sinking fund payment
date, 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 or coupon
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, premium, if any, or interest
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 such date;
provided that no interest shall accrue on the amount so payable
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.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally. The Securities of each
series and the coupons, if any, to be attached thereto shall be
in substantially such form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities and coupons,
if any, as evidenced by their execution of the Securities and
coupons, if any. Unless otherwise provided as contemplated in
Section 3.1, Securities will be issued only in registered form
without coupons or in the form of one or more global securities.
If temporary Securities of any series are issued as permitted by
Section 3.4, the form thereof also shall be established as
provided in the preceding sentence. If the forms of Securities
and coupons, if any, of any series are established by, or by
action taken pursuant to, a Board Resolution, a copy of the Board
Resolution together with an appropriate record of any such action
taken pursuant thereto, including a copy of the approved form of
Securities or coupons, if any, shall be certified by the
Corporate Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication
and delivery of such Securities.
Unless otherwise specified as contemplated by Section
3.1, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and coupons, if any, as
evidenced by their execution of such Securities and coupons, if
any.
Section 2.2. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series described
in the within-mentioned Indenture.
________________________________
as Trustee
By______________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If Securities
of or within a series are issuable in whole or in part in global
form, any such Security may provide that it shall represent the
aggregate or specified amount of Outstanding Securities from time
to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of
a Security in global form to reflect the amount, or any increase
or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby, shall be made in
such manner and by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.3 or 3.4. Subject to the provisions of
Section 3.3 and, if applicable, Section 3.4, 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. 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 1.2 hereof and need not
be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3
shall apply to any 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 1.2 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 paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7,
unless otherwise specified as contemplated by Section 3.1,
payment of principal of, premium, if any, and interest on any
Security in permanent global form shall be made to the Person or
Persons specified therein.
Section 2.4. Form of Legend for Securities in Global
Form. Any Security in global form authenticated and delivered
hereunder shall bear a legend in substantially the following
form:
This Security is in global form within the meaning of
the Indenture hereinafter referred to and is registered in
the name of a Depository or a nominee of a Depository.
Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be
transferred except as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series.
(b) The following matters shall be established with
respect to each series of Securities issued hereunder (i) by a
Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to
Section 3.3) set forth, or determined in the manner provided, in
an Officers' Certificate or (iii) in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which
title shall distinguish the Securities of the series from
all other series of Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (which limit shall not pertain to
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 3.4, 3.5, 3.6, 8.6, or 10.7);
(3) the date or dates on which the principal of and
premium, if any, on the Securities of the series is payable
or the method of determination thereof;
(4) the rate or rates (which may be fixed, variable or
zero) at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or
rates of interest;
(5) the date or dates from which interest, if any,
shall accrue or the method by which such date or dates shall
be determined;
(6) the Interest Payment Dates on which any such
interest shall be payable and, with respect to Registered
Securities, the Regular Record Date, if any, for the
interest payable on any Registered Security on any
Interest Payment Date;
(7) the place or places where the principal of,
premium, if any, and interest, if any, on Securities of the
series shall be payable;
(8) the period or periods within which, the price or
prices at which, the currency in which, and the other terms
and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company
and, if other than as provided in Section 10.3, the manner
in which the particular Securities of such series (if less
than all Securities of such series are to be redeemed) are
to be selected for redemption;
(9) the obligation, if any, of the Company to redeem
or purchase Securities of the series pursuant to any sinking
fund or analogous provisions or upon the happening of a
specified event 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,
Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any
integral multiple thereof, if Registered Securities, and if
other than the denomination of $5,000, if Bearer Securities,
the denominations in which Securities of the series shall be
issuable;
(11) if other than Dollars, the currency for which the
Securities of the series may be purchased or in which the
Securities of the series shall be denominated and/or the
currency in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be
payable and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the
provisions of this Indenture;
(12) if the amount of payments of principal of,
premium, if any, and interest, if any, on the Securities of
the series shall be determined with reference to an index,
formula or other method (which index, formula or method may
be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which
the Securities of the series are denominated or designated
to be payable), the index, formula or other method by which
such amounts shall be determined;
(13) if the amount of payments of principal, premium,
if any, and interest, if any, on the Securities of the
series shall be determined with reference to an index,
formula or other method based on the prices of securities or
commodities, with reference to changes in the prices of
securities or commodities or otherwise by application of a
formula, the index, formula or other method by which such
amounts shall be determined;
(14) if other than the entire principal amount
thereof, the portion of the principal amount of such
Securities of the series which shall be payable upon
declaration of acceleration thereof pursuant to Section 5.2
or the method by which such portion shall be determined;
(15) if other than as provided in Section 3.7, the
Person to whom any interest on any Registered Security of
the series shall be payable and the manner in which, or the
Person to whom, any interest on any Bearer Securities of the
series shall be payable;
(16) provisions, if any, granting special rights to
the Holders of Securities of the series upon the occurrence
of such events as may be specified;
(17) any addition to or modification or deletion of
any Events of Default set forth in Section 5.1 or covenant
of the Company set forth in Article 9 pertaining to the
Securities of the series;
(18) under what circumstances, if any, the Company
will pay additional amounts on the Securities of that series
held by a Person who is not a U.S. Person in respect of
taxes or similar charges withheld or deducted and, if so,
whether the Company will have the option to redeem such
Securities rather than pay such additional amounts (and the
terms of any such option);
(19) whether Securities of the series shall be
issuable as Registered Securities or Bearer Securities (with
or without interest coupons), or both, and any restrictions
applicable to the offering, sale or delivery of Bearer
Securities and, if other than as provided in Section 3.5,
the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and
vice versa;
(20) the date as of which any Bearer Securities of the
series and any temporary global Security representing
Outstanding Securities of the series shall be dated if other
than the date of original issuance of the first Security of
the series to be issued;
(21) the forms of the Securities and coupons, if any,
of the series;
(22) the applicability, if any, to the Securities of
or within the series of Sections 4.4 and 4.5, or such other
means of defeasance or covenant defeasance as may be
specified for the Securities and coupons, if any, of such
series;
(23) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(24) if the Securities of the series shall be issued
in whole or in part in global form, (i) the Depository for
such global Securities, (ii) whether beneficial owners of
interests in any Securities of the series in global form may
exchange such interests for certificated Securities of such
series and of like tenor of any authorized form and
denomination, and (iii) if other than as provided in Section
3.5, the circumstances under which any such exchange may
occur; and
(25) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture)
including any terms which may be required by or advisable
under United States laws or regulations or advisable in
connection with the marketing of Securities of the series.
(c) All Securities of any one series and coupons, if
any, appertaining to any Bearer Securities of such series shall
be substantially identical except, in the case of Registered
Securities, as to denomination and except as may otherwise be
provided (i) by a Board Resolution, (ii) by action taken pursuant
to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All
Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without
the consent of the Holders, for issuances of additional
Securities of such series.
(d) If any of the terms of the Securities of any
series are established by action taken pursuant to a Board
Resolution, a copy of such Board Resolution shall be certified by
the Corporate Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an
appropriate record of any action taken pursuant thereto in
connection with the issuance of any Securities of such series
shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations. Unless otherwise provided
as contemplated by Section 3.1, any Registered Securities of a
series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and
Dating. Securities shall be executed on behalf of the Company by
two Officers. The Company's seal shall be reproduced on the
Securities. The signatures of any of these Officers on the
Securities may be manual or facsimile. The coupons, if any, of
Bearer Securities shall bear the facsimile signature of two
Officers.
Securities and coupons 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, the Company may
deliver Securities, together with any coupons appertaining
thereto, of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities; provided, however, that in the case of
Securities offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents,
promptly confirmed in writing) acceptable to the Trustee as may
be specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of
Securities of such series.
If the form or terms of the Securities of a series have
been established by or pursuant to one or more Board Resolutions
as permitted by Sections 2.1 and 3.1, in authenticating such
Securities and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to section 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the forms of such Securities and any coupons
have been established by or pursuant to a Board Resolution
as permitted by Section 2.1, that such forms have been
established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities and any coupons
have been established by or pursuant to a Board Resolution
as permitted by Section 3.1, that such terms have been, or
in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the
provisions of this Indenture, subject in the case of
Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws
of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles.
Notwithstanding that such form or terms have been so established,
the Trustee shall have the right to decline to authenticate such
Securities if, in the written opinion of counsel to the Trustee
(which counsel may be an employee of the Trustee) reasonably
acceptable to the Company, the issue of such Securities pursuant
to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of
the two preceding paragraphs, if all of the Securities of any
series are not to be issued at one time, it shall not be
necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 3.1 or the Company Order and Opinion of
Counsel otherwise required pursuant to the two preceding
paragraphs in connection with the authentication of each Security
of such series if such documents, with appropriate modifications
to cover such future issuances, are delivered at or prior to the
authentication upon original issuance of the first Security of
such series to be issued.
With respect to Securities of a series offered in a
Periodic Offering, the Trustee may rely, as to the authorization
by the Company of any of such Securities, the form and terms
thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this
Section, as applicable, in connection with the first
authentication of Securities of such series.
If the Company shall establish pursuant to Section 3.1
that the Securities of a series are to be issued in whole or in
part in global form, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company
Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and
shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series to
be represented by such Security or Securities in global form,
(ii) shall be registered, if a Registered Security, in the name
of the Depository for such Security or Securities in global form
or the nominee of such Depository, (iii) shall be delivered by
the Trustee to such Depository or pursuant to such Depository's
instruction and (iv) shall bear the legend set forth in Section
2.4.
Each Depository designated pursuant to Section 3.1 for
a Registered Security in global form must, at the time of its
designation and at all times while it serves as Depository, be a
clearing agency registered under the Securities Exchange Act of
1934 and any other applicable statute or regulation. The Trustee
shall have no responsibility to determine if the Depository is so
registered. Each Depository shall enter into an agreement with
the Trustee governing the respective duties and rights of such
Depository and the Trustee with regard to Securities issued in
global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the
date specified as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be
entitled to any benefits under this Indenture or be valid or
obligatory for any purpose until authenticated by the manual
signature of one of the authorized signatories of the Trustee or
an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such
signature upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered under this Indenture and is entitled to the benefits of
this Indenture. Except as permitted by Section 3.6 or 3.7, the
Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have
been detached and canceled.
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
3.9 together with a written statement (which need not comply with
Section 1.2 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 not be entitled to the benefits of this
Indenture.
Section 3.4. 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 of such series
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor and form, with or without coupons, of the definitive
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities and coupons, if any. In the case of Securities of any
series, such temporary Securities may be in global form,
representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global
form, each of which shall be exchanged in accordance with the
provisions thereof, if temporary Securities of any series are
issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay. After
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 pursuant to Section 9.2 in a Place of Payment for
such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining
thereto), 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 and of like tenor; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security unless the Trustee shall have received
from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form approved in the
Board Resolutions relating thereto and such delivery shall occur
only outside the United States. 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 except as otherwise specified as
contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency to be maintained by the
Company in accordance with Section 9.2 in a Place of Payment a
register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the registration of
transfers of Registered Securities. The Register shall be in
written form or any other form capable of being converted into
written form within a reasonable time. The Trustee is hereby
appointed "Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities as herein
provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency
maintained pursuant to Section 9.2 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 Registered Securities
of the same series, of any authorized denominations and of a like
aggregate principal amount containing identical terms and
provisions.
Bearer Securities or any coupons appertaining thereto
shall be transferable by delivery.
At the option of the Holder, Registered Securities of
any series (except a Registered Security in global form) may be
exchanged for other Registered Securities of the same series, of
any authorized denominations and of a like aggregate principal
amount containing identical terms and provisions, upon surrender
of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless
otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered
Securities.
Unless otherwise specified as contemplated by Section
3.1, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities (if the
Securities of such series are issuable in registered form) or
Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are
permitted by such series) of the same series, of any authorized
denominations and of like tenor and aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any
such office or agency, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, such exchange
may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in
Section 9.2, interest represented by coupons shall be payable
only upon presentation and surrender of those coupons at an
office or agency located outside the United States.
Notwithstanding the foregoing, in case any Bearer Security of any
series is surrendered at any such office or agency in exchange
for a Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on
the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency
on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the
case may be (or, if such coupon is so surrendered with such
Bearer Security, such coupon shall be returned to the person so
surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder
of such coupon, when due in accordance with the provisions of
this Indenture.
Notwithstanding any other provision of this Section,
unless and until it is exchanged in whole or in part for
Securities in definitive certificated form, a Security in global
form representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depository for
such series to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a
successor Depository for such series or a nominee of such
successor Depository.
If at any time the Depository for the Securities of a
series notifies the Company that it is unwilling or unable to
continue as Depository for the Securities of such series or if at
any time the Depository for the Securities of such series shall
no longer be eligible under Section 3.3, the Company shall
appoint a successor Depository with respect to the Securities of
such series. If a successor Depository for the Securities of
such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section
3.1(b)(24) shall no longer be effective with respect to the
Securities of such series and the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver, Securities of such series
of like tenor in certificated form, in authorized denominations
and in an aggregate principal amount equal to the principal
amount of the Security or Securities of such series of like tenor
in global form in exchange for such Security or Securities in
global form.
The Company may at any time in its sole discretion
determine that Securities issued in global form shall no longer
be represented by such a Security or Securities in global form.
In such event the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor
in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the
Security or Securities of such series of like tenor in global
form in exchange for such Security or Securities in global form.
If specified by the Company pursuant to Section 3.1
with respect to a series of Securities, the Depository for such
series may surrender a Security in global form of such series in
exchange in whole or in part for Securities of such series in
certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service
charge,
(i) to each Person specified by such Depository a new
certificated Security or Securities of the same series of
like tenor, of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the
Security in global form; and
(ii) to such Depository a new Security in global form
of like tenor in a denomination equal to the difference, if
any, between the principal amount of the surrendered
Security in global form and the aggregate principal amount
of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for
Securities in certificated form, such Security in global form
shall be canceled by the Trustee. Unless expressly provided with
respect to the Securities of any series that such Security may be
exchanged for Bearer Securities, Securities in certificated form
issued in exchange for a Security in global form pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form,
pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such
Securities are so registered.
Whenever any Securities are surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer
or upon any 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 Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Registrar or the Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Registrar and the Trustee 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 for any exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration or transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4 or 10.7 not involving any
transfer.
The Company shall not be required (i) to issue,
register the transfer of, or exchange any Securities for a period
beginning at the opening of business 15 days before any selection
for redemption of Securities of like tenor and of the series of
which such Security is a part and ending at the close of business
on the earliest date on which the relevant notice of redemption
is deemed to have been given to all Holders of Securities of like
tenor and of such series to be redeemed; (ii) to register the
transfer of or exchange any Registered Security so selected for
redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part; or (iii) to exchange any
Bearer Security so selected for redemption, except that such a
Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided that such Registered
Security shall be simultaneously surrendered for redemption.
Section 3.6. Replacement Securities. If a mutilated
Security or a Security with a mutilated coupon appertaining to it
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 harmless, the Company shall
execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was
a Registered Security, or a replacement Bearer Security with
coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was a Bearer
Security, of the same series and date of maturity, if the
Trustee's requirements are met.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security or Security with a destroyed, lost
or stolen coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or
the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which
a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a replacement
Registered Security, if such Holder's claim appertains to a
Registered Security, or a replacement Bearer Security with
coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security
to which such lost, destroyed or stolen coupon appertains, if
such Holder's claim appertains to a Bearer Security, of the same
series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding
with coupons corresponding to the coupons, if any, appertaining
to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new security or coupon, pay such Security or coupon; provided,
however, that payment of principal of and any premium or interest
on Bearer Securities shall, except as otherwise provided in
Section 9.2, be payable only at an office or agency located
outside the United States and, unless otherwise specified as
contemplated by Section 3.1, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, 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 and their coupons, if
any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
Section 3.7. Payment of Interest; Interest Rights
Preserved. (a) Unless otherwise provided as contemplated by
Section 3.1, interest, if any, on any Registered Security which
is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest at the office or agency maintained for such
purpose pursuant to 9.2; provided, however, that at the option of
the Company, interest on any series of Registered Securities that
bear interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of
Holders of Securities of such series or (ii) by wire transfer to
an account maintained by the Person entitled thereto as specified
in the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section
3.1, (i) interest, if any, on Bearer securities shall be paid
only against presentation and surrender of the coupons for such
interest installments as are evidenced thereby as they mature and
(ii) original issue discount, if any, on Bearer Securities shall
be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have
otherwise instructed the Trustee in writing, provided that any
such instruction for payment in the United States does not cause
any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The
interest, if any, on any temporary Bearer Security shall be paid,
as to any installment of interest evidenced by a coupon attached
thereto only upon presentation and surrender of such coupon and,
as to other installments of interest, only upon presentation of
such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest,
if any, on a Bearer Security or coupon shall become due, the
payment of the full amount so payable at the office or offices of
all the Paying Agents outside the United States is illegal or
effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such
amount in Dollars, then the Company may instruct the Trustee in
writing to make such payments at a Paying Agent located in the
United States, provided that provision for such payment in the
United States would not cause such Bearer Security to be treated
as a "registration-required obligation" under United States laws
and regulations.
(b) Unless otherwise provided as contemplated by
Section 3.1, any interest on Registered Securities of any series
which is payable, but is not punctually paid or duly provided
for, on any interest payment date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holders on
the relevant Regular Record Date by virtue of their having been
such Holders, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) The Company may elect to make payment of such
Defaulted Interest to the Persons in whose names such
Registered Securities (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 deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the trustee for such deposit prior to the
date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of such Registered Securities at his address as it
appears in the Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of such Defaulted
Interest to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are
registered at the close of business on a specified date in
any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Registered 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 (2), such manner of payment shall be deemed
practicable by the Trustee.
(c) Subject to the foregoing provisions of this
Section and Section 3.5, 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 3.8. Persons Deemed Owners. Prior to due
presentment of any Registered 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 Registered
Security is registered as the owner of such Registered Security
for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not
such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and
the bearer of any coupon as the absolute owner of such Bearer
Security or coupon for the purpose of receiving payment thereof
or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the
Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Security in global
form, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests. Notwithstanding
the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or 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 (or its nominee), as a Holder, with respect to
such Security in global form or impair, as between such
Depository and owners of beneficial interests in such Security in
global form, the operation of customary practices governing the
exercise of the rights of such Depository (or its nominee) as
Holder of such Security in global form.
Section 3.9. Cancellation. The Company at any time
may deliver Securities and coupons to the Trustee for
cancellation. The Registrar and any Paying Agent shall forward
to the Trustee any Securities and coupons surrendered to them for
replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons
surrendered for replacement, for registration of transfer, or for
exchange, payment, redemption or cancellation and may, but shall
not be required to, dispose of canceled Securities and coupons
and issue a certificate of destruction to the Company. The
Company may not issue new Securities to replace Securities that
it has paid or delivered to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as
otherwise specified as contemplated by Section 3.1, interest on
the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing
the Securities may use "CUSIP" numbers (if then generally in
use), and, in such case, the Trustee shall use "CUSIP" numbers in
notices of redemption 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 redemption and that
reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
Section 3.12. Currency of Payment in Respect of
Securities. Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, payment of the principal of,
premium, if any, and interest, if any, on any Registered or
Bearer Security of such series will be made in Dollars.
ARTICLE 4
Satisfaction, Discharge and Defeasance
Section 4.1. Termination of Company's Obligations
Under the Indenture. (a) This Indenture shall upon a Company
Request cease to be of further effect with respect to Securities
of or within any series and any coupons appertaining thereto
(except as to any surviving rights of registration of transfer or
exchange of such Securities and replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly
provided for) and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities and
any coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated
and delivered and all coupons appertaining thereto
(other than (i) such coupons appertaining to Bearer
Securities surrendered in exchange for Registered
Securities and maturing after such exchange, surrender
of which is not required or has been waived as provided
in Section 3.5, (ii) such Securities and coupons which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, (iii) such
coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption
Date, surrender of which has been waived as provided in
Section 10.6 and (iv) such Securities and coupons for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from
such trust, as provided in Section 9.3) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining
thereto 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 the purpose an amount in the currency in which
the Securities of such series are payable,
sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons
not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and
interest, with respect thereto, to the date of
such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.9, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to
the provisions of the last paragraph of Section 9.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of
the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal,
premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent
required by law.
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or Covenant Defeasance. If
pursuant to Section 3.1 provision is made for either or both of
(i) defeasance of the Securities of or within a series under
Section 4.4 or (ii) covenant defeasance of the Securities of or
within a series under Section 4.5, then the provisions of such
Section or Sections, as the case may be, together with the
provisions of Sections 4.6 through 4.9 inclusive, with such
modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities, shall be applicable to such
Securities and any coupons appertaining thereto, and the Company
may at its option by Board Resolution, at any time, with respect
to such Securities and any coupons appertaining thereto, elect to
have Section 4.4 (if applicable) or Section 4.5 (if applicable)
be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set
forth below in this Article.
Section 4.4. Defeasance and Discharge. Upon the
Company's exercise of the option specified in Section 4.3
applicable to this Section with respect to the Securities of or
within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities
and any coupons appertaining thereto on the date the conditions
set forth in Section 4.6 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 Securities and any coupons
appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.7 and the other
Sections of this Indenture referred to in clause (ii) of this
Section, and to have satisfied all its other obligations under
such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining
thereto are concerned (and the Trustee, at the expense of the
Company, shall on Company Order execute proper instruments
acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Securities and any coupons appertaining
thereto to receive, solely from the trust funds described in
Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and
interest, if any, on such Securities or any coupons appertaining
thereto when such payments are due; (ii) the Company's
obligations with respect to such Securities under Sections 3.5,
3.6, 9.2 and 9.3 and with respect to the payment of additional
amounts, if any, payable with respect to such Securities as
specified pursuant to Section 3.1(b)(18); (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Article 4. Subject to compliance with this Article
4, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section
4.5 with respect to such Securities and any coupons appertaining
thereto. Following a defeasance, payment of such Securities may
not be accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's
exercise of the option specified in Section 4.3 applicable to
this Section with respect to any Securities of or within a
series, the Company shall be released from its obligations under
Sections 7.1, 9.4, 9.5, 9.8 and 9.9 and, if specified pursuant to
Section 3.1, its obligations under any other covenant, with
respect to such Securities and any coupons appertaining thereto
on and after the date the conditions set forth in Section 4.6 are
satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto 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 Sections 7.1,
9.4, 9.5, 9.8 and 9.9 or such other covenant, but shall continue
to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect
to such Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any
such Section or such other covenant or by reason of reference in
any such Section or such other 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
5.1(3) or 5.1(7) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be
unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application
of Section 4.4 or Section 4.5 to any Securities of or within a
series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee
satisfying the requirements of Section 6.12 who shall agree
to comply with, and shall be entitled to the benefits of,
the provisions of Sections 4.3 through 4.9 inclusive and the
last paragraph of Section 9.3 applicable to the Trustee, for
purposes of such Sections also a "Trustee") as trust funds
in trust for the purpose of making the payments referred to
in clauses (x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons
appertaining thereto, with instructions to the Trustee as to
the application thereof, (A) money in an amount (in such
currency in which such Securities and any coupons
appertaining thereto are then specified as payable at
Maturity), or (B) if Securities of such series are not
subject to repayment at the option of Holders, Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment referred to in clause (x) or (y) of this Section
4.6(a), money in an amount or (C) a combination thereof in
an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (x) the
principal of, premium, if any, and interest, if any, on such
Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of
principal or interest and (y) any mandatory sinking fund
payments applicable to such Securities on the day on which
such payments are due and payable in accordance with the
terms of this Indenture and such Securities and any coupons
appertaining thereto. Before such a deposit the Company may
make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in
accordance with Article 10 which shall be given effect in
applying the foregoing.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default
or Event of Default under, this Indenture or result in a
breach or violation of, or constitute a default under, any
other material agreement or instrument to which the Company
is a party or by which it is bound.
(c) In the case of an election under Section 4.4, the
Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i)
the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the
date of 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 Securities and any coupons
appertaining thereto 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 amount, in the same manner and at the same times as
would have been the case if such deposit, defeasance and
discharge had not occurred.
(d) In the case of an election under Section 4.5, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities
and any coupons appertaining thereto 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.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
under Section 4.4 or the covenant defeasance under Section
4.5 (as the case may be) have been complied with.
(f) Such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith as contemplated by Section
3.1.
Section 4.7. Deposited Money and Government
Obligations to Be Held in Trust. Subject to the provisions of
the last paragraph of Section 9.3, all money and Government
Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.6 in respect of any Securities of
any series and any coupons appertaining thereto shall be held in
trust and applied by the Trustee, in accordance with the
provisions of such Securities and any coupons appertaining
thereto 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 and any coupons appertaining thereto of all sums
due and to become due thereon in respect of principal, premium,
if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Section 4.8. Repayment to Company. The Trustee (and
any Paying Agent) shall promptly pay to the Company upon Company
Request any excess money or securities held by them at any time.
Section 4.9. Indemnity for Government Obligations.
The Company shall pay, and shall indemnify the Trustee against,
any tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to this Article or the
principal and interest received on such Government Obligations.
ARTICLE 5
Defaults and Remedies
Section 5.1. Events of Default. An "Event of Default"
occurs with respect to the Securities of any series if:
(1) the Company defaults in the payment of interest on
any Security of that series or any coupon appertaining
thereto or any additional amount payable with respect to any
Security of that series as specified pursuant to Section
3.1(b)(18) when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of or any premium on any Security of that series
when the same becomes due and payable at its Maturity, or in
the making of a mandatory sinking fund payment when and as
due by the terms of the Securities of that series;
(3) the Company fails to comply in any material
respect with any of its agreements or covenants in, or any
of the provisions of, this Indenture with respect to any
Security of that series (other than an agreement, covenant
or provision for which non-compliance is elsewhere in this
Section specifically dealt with), and such non-compliance
continues for a period of 90 days after there has been
given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding
Securities of the series, a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) an event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or
by which there may be secured or evidenced, any indebtedness
for borrowed money of the Company (including this
Indenture), whether such indebtedness now exists or shall
hereafter be created, in a principal amount then outstanding
of $15,000,000 or more, shall happen and shall result in
such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise become due and
payable, and such acceleration shall not be rescinded or
annulled and such indebtedness shall not be paid in full
within a period of 30 days; provided, however, that there
shall have been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series a written
notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or
annulled or to pay in full such indebtedness and stating
that such notice is a "Notice of Default" hereunder (it
being understood however, that the Trustee shall not be
deemed to have knowledge of such default under such
agreement or instrument unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such
default or (B) a Responsible Officer of the Trustee shall
have received written notice thereof from the Company, from
any Holder, from the holder of any such indebtedness or from
the trustee under any such agreement or other instrument);
provided, further, that if such default under such agreement
or instrument is remedied or cured by the Company or waived
by the holders of such indebtedness and the acceleration is
rescinded or annulled, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action
upon the part of either the Trustee or any of such Holders;
(5) the Company pursuant to or within the meaning of
any Bankruptcy Law (A) commences a voluntary case, (B)
consents to the entry of an order for relief against it in
an involuntary case, (C) consents to the appointment of a
Custodian of it or for all or substantially all of its
property; or (D) makes a general assignment for the benefit
of its creditors;
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that (A) is for relief
against the Company in an involuntary case, (B) appoints a
Custodian of the Company or for all or substantially all of
their respective property, or (C) orders the liquidation of
the Company; and the order or decree remains unstayed and in
effect for 60 days; or
(7) any other Event of Default provided as
contemplated by Section 3.1 with respect to Securities of
that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or
any similar federal or state law for the relief of debtors. The
term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment.
If an Event of Default with respect to the Securities of any
series at the time Outstanding occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal
amount of all of the Outstanding Securities of that series, by
written notice to the Company (and, if given by the Holders, to
the Trustee), may declare the principal (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 and accrued interest,
if any, on all the Securities of that series to be due and
payable and upon any such declaration such principal (or, in the
case of Original Issue Discount Securities or Indexed Securities,
such specified amount) and interest, if any, shall be 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 aggregate principal amount of the
Outstanding Securities of that series, by written notice to the
Trustee, may rescind and annul such declaration and its
consequences if all existing Defaults and Events of Default with
respect to Securities of that series, other than the non-payment
of the principal of Securities of that series which have become
due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.7. No such rescission shall
affect any subsequent default or impair any right consequent
thereon.
Section 5.3. 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 or coupon, if any, when such interest becomes
due and payable and such default continues for a period of
30 days; or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities or coupons, if any, the
whole amount then due and payable on such Securities for
principal, premium, if any, and interest and, to the extent that
payment of such interest shall be legally enforceable, interest
on any overdue principal, premium, if any, and on any overdue
interest, at the rate or rates prescribed therefor in such
Securities or coupons, if any, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to secure any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Holders of Securities allowed in
any judicial proceedings relating to the Company, its creditors
or its property.
Section 5.5. 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.
Section 5.6. Delay or Omission Not Waiver. No delay
or omission by the Trustee or any Holder of any Securities to
exercise any right or remedy accruing upon an Event of Default
shall impair any such right or remedy or constitute a waiver of
or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of
a majority in aggregate principal amount of outstanding
Securities of any series by written notice to the Trustee may
waive on behalf of the Holders of all Securities of such series a
past Default or Event of Default with respect to that series and
its consequences except (i) a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any
Security of such series or any coupon appertaining thereto or
(ii) in respect of a covenant or provision hereof which pursuant
to Section 8.2 cannot be amended or modified without the consent
of the Holder of each Outstanding Security of such series
adversely 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.
Section 5.8. Control by Majority. The Holders of a
majority in aggregate principal amount of the Outstanding
Securities of each series affected (with each such series voting
as a class) 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 it with
respect to Securities of that series; provided, however, that (i)
the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, (ii) the Trustee may refuse to follow
any direction that is unduly prejudicial to the rights of the
Holders of Securities of such series not consenting, or that
would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal
liability and (iii) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 5.9. Limitation on Suits by Holders. No
Holder of any Security of any series or any coupons appertaining
thereto 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) the Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series have
made a written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss,
liability or expense to be, or which may be, incurred by the
Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed to
institute any such proceedings; and
(5) during such 60 day period, the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of that series have not given to the Trustee a
direction inconsistent with such written request.
No one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but
subject to Section 9.2, the right of any Holder of a Security or
coupon to receive payment of principal of, premium, if any, and,
subject to Sections 3.5 and 3.7, interest on the Security, on or
after the respective due dates expressed in the Security (or, in
case of redemption, on the Redemption Dates), and the right of
any Holder of a coupon to receive payment of interest due as
provided in such coupon, or, subject to Section 5.9, to bring
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 5.11. Application of Money Collected. If the
Trustee collects any money pursuant to this Article, it shall pay
out the money 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, premium, if any, or interest, upon
presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if
fully paid:
First: to the Trustee for amounts due under Section
6.9;
Second: to Holders of Securities and coupons in
respect of which or for the benefit of which such money has
been collected for amounts due and unpaid on such Securities
for principal of, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for
any payment to Holders pursuant to this Section 5.11. At least
15 days before such record date, the Trustee shall mail to each
holder and the Company a notice that states the record date, the
payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If
the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
Section 5.13. Rights and Remedies Cumulative. Except
as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred
upon or reserved to the Trustee or the Holders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities of
the Trustee. (a) Except during the continuance of an Event of
Default, the Trustee's duties and responsibilities under this
Indenture shall be governed by Section 315(a) of the Trust
Indenture Act.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture, and shall use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
Section 6.2. Rights of Trustee. Subject to the
provisions of the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any document believed
by it to be genuine and to have been signed or presented by
the proper party or parties. The Trustee need not
investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order (other than delivery of any Security,
together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section
3.3, which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting,
it may consult with counsel or require an Officers'
Certificate. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on a
Board Resolution, the written advice of counsel acceptable
to the Company and the Trustee, a certificate of an Officer
or Officers delivered pursuant to Section 1.2, an Officers'
Certificate or an Opinion of Counsel.
(d) The Trustee may act through agents or attorneys
and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care.
(e) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers.
(f) The Trustee shall not be required 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 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.
Section 6.3. Trustee May Hold Securities. The
Trustee, any Paying Agent, any Registrar or any other agent of
the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to
Sections 310(b) and 311 of the Trust Indenture Act, may otherwise
deal with the Company, an Affiliate or Subsidiary with the same
rights it would have if it were not Trustee, Paying Agent,
Registrar or such other agent.
Section 6.4. 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 upon in writing with the
Company.
Section 6.5. Trustee's Disclaimer. The recitals
contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities or any
coupon. The Trustee shall not be accountable for the Company's
use of the proceeds from the Securities or for monies paid over
to the Company pursuant to the Indenture.
Section 6.6. Notice of Defaults. If a Default occurs
and is continuing with respect to the Securities of any series
and if it is known to the Trustee, the Trustee shall, within 90
days after it occurs, transmit by mail, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act,
notice of all Defaults known to it unless such Default shall have
been cured or waived; provided, however, that in the case of a
Default in payment on the Securities of any series, the Trustee
may withhold the notice if and so long as the board of directors,
the executive committee or a committee of its Responsible
Officers in good faith determines that withholding such notice is
in the interests of Holders of Securities of that series; and
provided, further, that in the case of any Default of the
character specified in Section 5.1(3) 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 6.7. Reports by Trustee to Holders. Within 60
days after each November 15 of each year commencing with the
first November 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such November 15 if
required by and in compliance with Section 313(a) of the Trust
Indenture Act.
Section 6.8. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of
Holders of Securities of each series. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee semiannually
on or before the last day of June and December in each year, and
at such other times as the Trustee may request in writing, a
list, in such form and as of such date as the Trustee may
reasonably require, containing all the information in the
possession or control of the Registrar, the Company or any of its
Paying Agents other than the Trustee as to the names and
addresses of Holders of Securities of each such series. If there
are Bearer Securities of any series outstanding, even if the
Trustee is the Registrar, the Company shall furnish to the
Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.9. Compensation and Indemnity. (a) The
Company shall pay to the Trustee such compensation as the Company
and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of
an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it
in connection with the performance of its duties under this
Indenture, except any such expense as may be attributable to its
negligence or bad faith. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee for, and
hold it harmless against, any loss or liability, damage, claim or
reasonable expense including taxes (other than taxes based upon
or determined or measured by the income of the Trustee) incurred
by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent.
(c) The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee
through negligence or bad faith.
(d) To secure the payment obligations of the Company
pursuant to this Section, the Trustee shall have a lien prior to
the Securities of any series on all money or property held or
collected by the Trustee, except that held in trust to pay
principal, premium, if any, and interest on particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(5)
or Section 5.1(6), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the
termination of this Indenture.
Section 6.10. Replacement of Trustee. (a) The
resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of any series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series may remove the
Trustee with respect to that series by so notifying the Trustee
and the Company and may appoint a successor Trustee for such
series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of
the Trust Indenture Act 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 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of
a Security for at least six months; or
(3) the Trustee becomes incapable of acting, is
adjudged a bankrupt or an insolvent or a receiver or public
officer takes charge of the Trustee or its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee with respect to all Securities,
or (ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, with
respect to Securities of one or more series, the Company, by or
pursuant to Board Resolution, shall promptly appoint a successor
Trustee 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) and
shall comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, 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.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee, without
further act, deed or conveyance, shall become vested with all the
rights, powers and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and such
successor Trustee shall execute and deliver an indenture
supplemental hereto wherein such successor Trustee shall accept
such appointment and which (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, such 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, (ii) 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 (iii) 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, 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
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series in the manner provided
for notices to the Holders of Securities in Section 1.6. 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 6.12. Eligibility; Disqualification. There
shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under Section 310(a)(1) of the Trust Indenture
Act and shall have a combined capital and surplus of at least
$75,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or the requirements of
federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
Section 6.13. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed
by a Responsible Officer of the Trustee, a copy of which
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 acceptable to the Company and,
except as may otherwise be provided pursuant to Section 3.1,
shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws
of the United States of America or of any state or the District
of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than
$1,500,000 and subject to supervision or examination by federal
or state authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of 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 further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities
may at any time resign by giving written notice of resignation to
the Trustee for such series and to the Company. The Trustee for
any series of Securities may at any time terminate the agency of
an Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee for such series may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve
in the manner set forth in Section 1.6. 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 herein. 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 including reimbursement
of its reasonable expenses 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 or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series described
in the within-mentioned Indenture.
____________________________,
as Trustee
By _________________________
as Authenticating Agent
By _________________________
Authorized Signatory
ARTICLE 7
Consolidation, Merger or Sale by the Company
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company shall not consolidate or merge with or
into, or transfer or lease all or substantially all of its assets
to, any Person unless:
(1) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or
which acquires the Company's assets, is organized and
existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or
which acquires the Company's assets, assumes by supplemental
indenture all the obligations of the Company under the
Securities and this Indenture; and
(3) immediately after giving effect to the transaction
no Default or Event of Default shall have occurred and be
continuing.
The Company shall deliver to the Trustee prior to the
proposed transaction an Officers' Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
ARTICLE 8
Supplemental Indentures
Section 8.1. 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 indentures
supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default with
respect to all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate
the issuance of Bearer Securities (including, without
limitation, to provide that Bearer Securities may be
registrable as to principal only) or to facilitate the
issuance of Securities in global form; or
(5) 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
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.11; or
(9) if allowed without penalty under applicable laws
and regulations, to permit payment in the United States
(including any of the states and the District of Columbia),
its territories, its possessions and other areas subject to
its jurisdiction of principal, premium, if any, or interest,
if any, on Bearer Securities or coupons, if any; or
(10) to correct or supplement any provision herein
which may be inconsistent with any other provision herein or
to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action
shall not adversely affect the interests of any Holder of
Securities of any series; or
(11) to cure any ambiguity or correct any mistake.
Section 8.2. Supplemental Indentures With Consent of
Holders. With the written consent of the Holders of a majority
of the aggregate principal amount of the Outstanding Securities
adversely affected by such supplemental indenture (with the
Securities of each series voting as a class), the Company and the
Trustee may enter into an indenture or indentures supplemental
hereto to add any provisions to or to change or eliminate any
provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the Holders of
such Securities; provided, however, that without the consent of
the Holder of each Outstanding Security affected thereby, an
amendment under this Section may not:
(1) change the Stated Maturity of the principal of or
premium, if any, or any installment of principal of or
premium, if any, or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or change
the manner in which the amount of any principal thereof or
premium, if any, or interest thereon is determined, or
reduce the amount of the principal of any Original Issue
Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the currency in
which any Securities or any premium or the interest thereon
is payable, change the index, securities or commodities with
reference to which or the formula by which the amount of
principal or any premium or the interest thereon is
determined, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities affected thereby, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for
any waiver (or compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) change any obligation of the Company to maintain
an office or agency in the places and for the purposes
specified in Section 9.2; or
(4) make any change in Section 5.7 or this 8.2 except
to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived
without the consent of the Holders of each Outstanding
Security affected thereby.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of
the Holders of Securities or 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 is not necessary under this Section 8.2 for the
Holders to consent to the particular form of any proposed
supplemental indenture, but it is sufficient if they consent to
the substance thereof.
Section 8.3. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or
more series shall be set forth in a supplemental indenture that
complies with the Trust Indenture Act as then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 8.5. 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 and of any
coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any coupons, 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
including any coupons 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 including any coupons of such
series.
ARTICLE 9
Covenants
Section 9.1. Payment of Principal, Premium, if any,
and Interest. The Company covenants and agrees for the benefit
of the Holders of each series of Securities that it will duly and
punctually pay the principal of, premium, if any, and interest on
the Securities of that series in accordance with the terms of the
Securities of such series, any coupons appertaining thereto and
this Indenture. An installment of principal, premium, if any, or
interest shall be considered paid on the date it is due if the
Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. If
Securities of a series are issued as Registered Securities, the
Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, (i) subject to any laws or
regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United
States where Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that if
the Securities of that series are listed on any stock exchange
located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the
Securities of that series in any other required city located
outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (ii)
subject to any laws or regulations applicable thereto, an office
or agency in a Place of Payment for that series which is located
outside the United States, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section
3.1, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company
in the United States, by check mailed to any address in the
United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of
a Bearer Security or coupon for payment, even if the payment
would be credited to an account located outside the United
States; provided, however, that, if the Securities of a series
are denominated and payable in Dollars, payment of principal of
and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or
more other offices or agencies where the Securities (including
any coupons, if any) of one or more series may be presented or
surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place
of Payment for Securities (including any coupons, if any) of any
series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
Unless otherwise specified as contemplated by Section
3.1, the Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held
in Trust; Unclaimed Money. If the Company shall at any time act
as its own Paying Agent with respect to any series of Securities,
it will, on or before each due date of the principal of, premium,
if any, or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest 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 in writing of its action or
failure so to act.
The Company will cause each Paying Agent for any series
of Securities other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on Securities of
that 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 that
series) in the making of any payment of principal, premium,
if any, or interest on the Securities; 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 such sums were held by
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
any principal, premium or interest on any Security of any series
and remaining unclaimed for two years after such principal,
premium, if any, 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 and coupon, if any, 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 a newspaper published in
the English language, customarily published on each Business Day
and of general circulation in The City of New York, or cause to
be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to
the Company.
Section 9.4. Corporate Existence. Subject to Article
7, the Company will at all times do or cause to be done all
things necessary to preserve and keep in full force and effect
its corporate existence and its rights and franchises; provided
that nothing in this Section 9.4 shall prevent the abandonment or
termination of any right or franchise of the Company if, in the
opinion of the Company, such abandonment or termination is in the
best interests of the Company and not prejudicial in any material
respect to the Holders of the Securities.
Section 9.5. Insurance. The Company covenants and
agrees that it will maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks
as are consistent with sound business practice for corporations
engaged in the same or similar business similarly situated
against loss by fire and the extended coverage perils. In lieu
of the foregoing or in combination therewith, in case of itself
or of any one or more of its Subsidiaries, the Company will
maintain or cause to be maintained a system or systems of
self-insurance which will accord with the financially sound and
approved practices of companies owning or operating properties of
a similar character and maintaining such systems. The Trustee
shall not be required to see that such insurance is effected or
maintained.
Section 9.6. Reports by the Company. The Company
covenants:
(a) to 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 Securities Exchange Act of 1934, as
amended; or, if the Company is not required to file
information, documents or reports pursuant to either of such
Sections, then to 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 Securities Exchange
Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with the 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 provided for in
this Indenture, as may be required from time to time by such
rules and regulations; and
(c) to transmit to all Holders of Securities, within
30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 9.6, as
may be required by the rules and regulations prescribed from
time to time by the Commission.
Section 9.7. Annual Review Certificate; Notice of
Defaults or Events of Default. (a) The Company covenants and
agrees to deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, a certificate from the
principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this Section 9.7, such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(b) The Company covenants and agrees to deliver to the
Trustee, within a reasonable time after the Company becomes aware
of the occurrence of a Default or an Event of Default of the
character specified in Section 5.1(4) hereof, written notice of
the occurrence of such Default or Event of Default.
Section 9.8. Limitation on Liens. (a) If the Company
or any of its Subsidiaries shall incur, assume or guarantee any
indebtedness for borrowed money secured by a Lien (any such
indebtedness being herein referred to as "Secured Debt") on any
Property or assets of the Company or any of its Subsidiaries, the
Company shall secure, or cause such Subsidiary to secure, the
Securities equally and ratably with (or, at the option of the
Company, prior to) such Secured Debt, unless after giving effect
thereto the sum, without duplication, of (i) the aggregate
principal amount of all such Secured Debt, and (ii) all
Attributable Debt in respect of Sale and Leaseback Transactions
(other than Sale and Leaseback Transactions as to which the
Company would be entitled to incur Secured Debt, in an amount at
least equal to the Attributable Debt in respect of such Sale and
Leaseback Transaction, on the Property to be leased, without
equally and ratably securing the Securities, pursuant to the
exclusions from the computation of Secured Debt contained below
in subclauses (i)-(vii) of Section 9.8(b) and other than Sale and
Leaseback Transactions the proceeds of which have been applied in
accordance with clause (b) of Section 9.9), would not exceed 15%
of the Consolidated Net Tangible Assets of the Company.
(b) The restriction of Section 9.8(a) will not apply
to, and there shall be excluded in computing the aggregate amount
of Secured Debt for the purpose of such restriction, indebtedness
secured by:
(i) (A) Liens existing as of the date of this
Indenture or (B) Liens relating to a contract that was
entered into by the Company or any Subsidiary prior to the
date of this Indenture;
(ii) Liens on any Property existing at the time of
acquisition thereof (whether such acquisition is direct or
by acquisition of stock, assets or otherwise) by the Company
or any of its Subsidiaries;
(iii) Liens upon or with respect to any Property
(including any contract rights relating thereto) acquired,
constructed, refurbished or improved by the Company or any
of its Subsidiaries (including, but not limited to, Liens to
secure all or any part of the cost of oil, gas or mineral
exploration, drilling, mining, extraction, refining or
processing or development of, or construction, alteration or
repair of any building, equipment, facility or other
improvement on, all or any part of such property, including
any pipeline financing) after the date of this Indenture
which are created, incurred or assumed contemporaneously
with, or within 360 days after, the latest to occur of the
acquisition (whether by acquisition of stock, assets or
otherwise), completion of construction, refurbishment or
improvement, or the commencement of commercial operation, of
such Property (or, in the case of Liens on contract rights,
the completion of construction or the commencement of
commercial operation of the facility to which such contract
rights relate, regardless of the date when such contract was
entered into) to secure or provide for the payment of any
part of the purchase price of such Property or the cost of
such construction, refurbishment or improvement; provided,
however, that in the case of any such construction,
refurbishment or improvement, the Lien shall relate only to
indebtedness reasonably incurred to finance such
construction, refurbishment or improvement;
(iv) Liens securing indebtedness owing by any
Subsidiary to the Company or to any other Subsidiary;
(v) Liens in connection with the sale or other
transfer in the ordinary course of business of (A) crude
oil, natural gas, other petroleum hydrocarbons or other
minerals in place for a period of time until, or in an
amount such that, the purchaser or other transferee will
realize therefrom a specified amount of money (however
determined) or a specified amount of such minerals, or (B)
any other interest in property of the character commonly
referred to as a "production payment";
(vi) Liens on current assets to secure any
indebtedness maturing (including any extensions or renewals
thereof) not more than one year from the date of the
creation of such Lien; and
(vii) Liens for the sole purpose of extending,
renewing or replacing in whole or in part the indebtedness
secured thereby referred to in the foregoing subclauses (i)
to (vi), inclusive, or in this clause (vii); provided,
however, that the Liens excluded pursuant to this clause
(vii) shall be excluded only in an amount not to exceed the
principal amount of indebtedness so secured at the time of
such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or
part of the Property subject to the lien so extended,
renewed or replaced (plus refurbishment of or improvements
on or to such Property).
Section 9.9. Limitation on Sale and Leaseback
Transactions. Neither the Company nor any of its Subsidiaries
may enter into, assume, guarantee or otherwise become liable with
respect to any Sale and Leaseback Transaction involving any
Property, if the latest to occur of, the acquisition, the
completion of construction or the commencement of commercial
operation of such Property shall have occurred more than 180 days
prior thereto, unless (a) the Company or such Subsidiary could
create Secured Debt secured by such Property under the
restrictions described in Section 9.8 in an amount equal to the
Attributable Debt with respect to the Sale and Leaseback
Transaction without equally and ratably securing the Securities
or (b) the Company or such Subsidiary, within 180 days from the
effective date of such Sale and Leaseback Transaction, applies an
amount not less than the greater of (i) the net proceeds of the
sale of such Property leased pursuant to such arrangement or (ii)
the fair value, in the opinion of the Board of Directors, of such
Property (as of the time of entering into such Sale and Leaseback
Transaction) to (x) the retirement of its Funded Debt, including,
for this purpose, any currently maturing portion of such Funded
Debt, or (y) the purchase of other property having a fair value
(as of the time of such purchase), in the opinion of the Board of
Directors, at least equal to the fair value, in the opinion of
the Board of Directors, of the Property leased in such Sale and
Leaseback Transaction (as of the time of entering into such Sale
and Leaseback Transaction). This restriction will not apply to
any Sale and Leaseback Transaction (1) between the Company and
any Subsidiary or between any Subsidiaries, (2) entered into
prior to the date of this Indenture or (3) for which, at the time
the transaction is entered into, the term of the related lease to
the Company or such Subsidiary of the Property sold pursuant to
such transaction is three years or less.
Section 9.10. Books of Record and Account; Compliance
with Law. (a) The Company will keep, and will cause each
Subsidiary to keep, proper books of record and account, either on
a consolidated or individual basis. The Company shall cause its
books of record and account to be examined by one or more firms
of independent public accountants not less frequently than
annually. The Company shall prepare its financial statements in
accordance with GAAP.
(b) The Company shall, and shall cause each of its
Subsidiaries to, comply with all statutes, laws, ordinances, or
government rules and regulations to which it is subject,
non-compliance with which would materially adversely affect the
business, prospects, earnings, properties, assets or condition,
financial or otherwise, of the Company and its Subsidiaries taken
as a whole.
(c) The Company shall not increase its "bonded
indebtedness", including "bonded indebtedness" evidenced by Debt
Securities issued under this Indenture, without obtaining
shareholder approval required under the Constitution of the State
of Arkansas.
Section 9.11. Taxes. The Company shall, and shall
cause each of its Subsidiaries to, pay or discharge or cause to
be paid or discharged prior to delinquency all taxes, assessments
and governmental levies the non-payment of which would materially
adversely affect the business, prospects, earnings, properties,
assets or condition, financial or otherwise, of the Company and
its Subsidiaries taken as a whole except those taxes, assessments
and governmental levies whose amount, applicability or validity
is being contested in good faith and by appropriate proceedings.
ARTICLE 10
Redemption
Section 10.1. Applicability of Article. Securities
(including coupons, if any) of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 10.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities, including
coupons, if any, shall be evidenced by or pursuant to a Board
Resolution. In the case of any redemption at the election of the
Company of less than all the Securities or coupons, if any, of
any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction
or condition.
Section 10.3. Selection of Securities to Be Redeemed.
Unless otherwise specified as contemplated by Section 3.1, if
less than all the Securities (including coupons, if any) of a
series with the same terms are to be redeemed, the Trustee, not
more than 45 days prior to the redemption date, shall select the
Securities of the series to be redeemed in such manner as the
Trustee shall deem fair and appropriate. The Trustee shall make
the selection from Securities of the series that are Outstanding
and that have not previously been called for redemption and may
provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities, including
coupons, if any, of that series or any integral multiple thereof)
of the principal amount of Securities, including coupons, if any,
of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. The
Trustee shall promptly notify the Company in writing of the
Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities (including coupons, if any) shall relate, in the case
of any Securities (including coupons, if any) redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Securities (including coupons, if any) which has been or is
to be redeemed.
Section 10.4. Notice of Redemption. Unless otherwise
specified as contemplated by Section 3.1, notice of redemption
shall be given in the manner provided in Section 1.6 not less
than 30 days nor more than 60 days prior to the Redemption Date
to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Security or 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 a charge, a
new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with
all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment for the
Redemption Price;
(6) that Securities of the series called for
redemption and all unmatured coupons, if any, appertaining
thereto must be surrendered to the Paying Agent to collect
the redemption price;
(7) that, on the Redemption Date, the Redemption Price
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;
(8) that the redemption is for a sinking fund, if such
is the case;
(9) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the Redemption Date or the amount of any such
missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory
to the Company, the Trustee and any Paying Agent is
furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed 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 10.5. Deposit of Redemption Price. On or
prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, which it may not do in the case of a
sinking fund payment under Article 11, segregate and hold in
trust as provided in Section 9.3) an amount of money in the
currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.1 for the
Securities of such series) sufficient to pay on the Redemption
Date the Redemption Price of, and (unless the Redemption Date
shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are
to be redeemed on that date.
Unless any Security by its terms prohibits any sinking
fund payment obligation from being satisfied by delivering and
crediting Securities (including Securities redeemed otherwise
than through a sinking fund), the Company may deliver such
Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and
this Indenture.
Section 10.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any
such interest appertaining to any Bearer Security so to be
redeemed, except to the extent provided below, shall be void.
Except as provided in the next succeeding paragraph, upon
surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States and
its possessions (except as otherwise provided in Section 9.2)
and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of coupons for such
interest; and provided, further, that, unless otherwise specified
as contemplated by Section 3.1, installments of interest on
Registered 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 3.7.
If any Bearer Security surrendered for redemption shall
not be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting
from the Redemption Price an amount equal to the face amount of
all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located
outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender
of those coupons.
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 prescribed therefor in the Security.
Section 10.7. Securities Redeemed in Part. Upon
surrender of a Security that is redeemed in part at any Place of
Payment therefor (with, if the Company or the Trustee so
required, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in
writing), the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of that Security, without
service charge a new Security or securities of the same series,
having the same form, terms and Stated Maturity, in any
authorized denomination equal in aggregate principal amount to
the unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE 11
Sinking Funds
Section 11.1. Applicability of Article. The
provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 3.1 for Securities
of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.2. Each sinking
fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such
series.
Section 11.2. Satisfaction of Sinking Fund Payments
with Securities. The Company (i) may deliver Outstanding
Securities of a series (other than any previously called for
redemption) together, in the case of Bearer Securities of such
series, with all unmatured coupons appertaining thereto and (ii)
may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided
that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 11.3. Redemption of Securities for Sinking
Fund. Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to
the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 11.2 and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30
days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.3 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
10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Sections 10.6 and 10.7.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall
together constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
SOUTHWESTERN ENERGY COMPANY
By:____________________________
Executive Vice President--Finance
and Corporate Development, and
Chief Financial Officer
[Seal]
Attest:
____________________________
Secretary
THE FIRST NATIONAL BANK OF CHICAGO
By: ______________________________
Title:
[Seal]
Attest:
_____________________________
Title:
[Letterhead of Cleary, Gottlieb, Steen & Hamilton]
Writer's Direct Dial: (212) 225-2420
November 16, 1995
Southwestern Energy Company
1083 Sain Street
Fayetteville, Arkansas 72703
Ladies and Gentlemen:
We have acted as counsel for Southwestern Energy
Company, an Arkansas corporation (the "Company"), in connection
with the preparation and filing with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933,
as amended (the "Securities Act"), of a Registration Statement on
Form S-3, as amended (the "Registration Statement"), relating to
the offering from time to time, as set forth in the Registration
Statement, the form of prospectus contained therein (the
"Prospectus") and one or more supplements to the Prospectus, of
the Company's debt securities (the "Debt Securities") up to an
aggregate initial public offering or purchase price of U.S.
$250,000,000 or the equivalent thereof. The Debt Securities are
to be issued in one or more series in accordance with the
provisions of an indenture dated as of December 1, 1995 (the
"Indenture") between the Company and The First National Bank of
Chicago, as trustee (the "Trustee").
We have participated in the preparation of the
Registration Statement and the Indenture and we have examined and
relied on the originals or copies certified or otherwise
identified to our satisfaction of all such corporate records of
the Company and such other instruments and other certificates of
public officials, officers and representatives of the Company and
such other persons, and we have made such investigations of law,
as we have deemed appropriate as a basis for the opinions
expressed below. In rendering the opinions expressed below we
have assumed and have not verified that the signatures on all
documents which we have examined are genuine.
Based on the foregoing, it is our opinion that:
1. The execution and delivery by the Company of the
Indenture have been duly authorized by all necessary corporate
action of the Company, and, assuming the due authorization,
execution and delivery of the Indenture by the Trustee, as to
which no opinion is expressed, the Indenture will, when duly
executed and delivered by the Company, be a legal, valid, binding
and enforceable agreement of the Company, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity (whether
considered in a proceeding in equity or at law).
2. When the issuance, execution and delivery by the
Company of the Debt Securities of a series have been duly
authorized by all necessary corporate action of the Company in
accordance with the provisions of the Indenture and when such
Debt Securities have been duly executed and delivered by the
Company, authenticated by the Trustee and sold as described in
the Registration Statement, the Prospectus and the supplement or
supplements to the Prospectus relating to such Debt Securities,
such Debt Securities will constitute legal, valid, binding and
enforceable obligations of the Company, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity (whether
considered in a proceeding in equity or at law).
We express no opinion other than as to the federal law
of the United States of America and the law of the State of New
York. With respect to all matters of the law of the State of
Arkansas, we have relied on the opinion of Jeffrey L. Dangeau,
Assistant Secretary to the Company, a copy of which is attached
hereto.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to
this firm under the heading "Legal Matters" in the Prospectus
without admitting that we are "experts" under the Securities Act,
or the rules and regulations of the Commission issued thereunder,
with respect to any part of the Registration Statement, including
this exhibit.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By________________________________
Stephen H. Shalen, a Partner
[Letterhead of Southwestern Energy Company]
November 16, 1995
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza, Suite 4300
New York, New York 10006
Ladies and Gentlemen:
I am Assistant Secretary of Southwestern Energy
Company, an Arkansas corporation (the "Company"), and as such
have acted as the Company's advisor in connection with the
preparation and filing with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933,
as amended (the "Securities Act"), of a Registration Statement on
Form S-3, as amended (the "Registration Statement"), relating to
the offering from time to time, as set forth in the Registration
Statement, the form of prospectus contained therein (the
"Prospectus") and one or more supplements to the Prospectus, of
the Company's debt securities up to an aggregate initial public
offering or purchase price of U.S. $250,000,000, or the
equivalent thereof, to be issued in one or more series in
accordance with the provisions of an indenture dated as of
December 1, 1995 (the "Indenture") between the Company and The
First National Bank of Chicago, as trustee (the "Trustee").
I have examined and relied on the originals or copies
certified or otherwise identified to our satisfaction of all such
corporate records of the Company and such other instruments and
other certificates of public officials, officers and
representatives of the Company and such other persons, and I have
made such investigations of law, as I have deemed appropriate as
a basis for the opinions expressed below. In rendering the
opinions expressed below I have assumed and have not verified
that the signatures on all documents which I have examined are
genuine.
Based on the foregoing, it is my opinion that the
execution and delivery by the Company of the Indenture have been
duly authorized by all necessary corporate action of the Company
and, assuming the due authorization, execution and delivery of
the Indenture by the Trustee, as to which no opinion is
expressed, the Indenture, when duly executed and delivered by the
Company, will constitute a legal, valid, binding and enforceable
agreement of the Company, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally
and to general principles of equity (whether considered in a
proceeding in equity or at law).
In rendering this opinion, I express no opinion other
than as to the law of the State of Arkansas.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to my
name under the heading "Legal Matters" in the Prospectus without
admitting that I am an "expert" under the Securities Act, or the
rules and regulations of the Commission issued thereunder, with
respect to any part of the Registration Statement, including this
exhibit.
Very truly yours,
Jeffrey L. Dangeau
Assistant Secretary,
Southwestern Energy Company
EXHIBIT 12
SOUTHWESTERN ENERGY COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
($ in 000's)
Nine Months Ended
September 30
_____________________
1995 1994
Income before income taxes $10,513 $32,448
Add:
Fixed charges, Southwestern 9,769 7,628
Fixed charges, NOARK (1) 2,831 2,567
Amortization of capitalized
interest 607 608
Deduct:
Interest capitalized on oil and
gas properties 1,545 1,159
Earnings for computation $22,175 $42,092
Fixed charges
Southwestern:
Interest on indebtedness $ 9,513 $ 7,383
Amortization of debt discount
and expense 144 133
Portion of rents representative
of interest 112 112
Total fixed charges,
Southwestern 9,769 7,628
NOARK(2) 3,544 3,227
Total fixed charges $ 13,313 $ 10,855
Ratio of earnings to fixed charges 1.7x 3.9x
SOUTHWESTERN ENERGY COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
($ in 000's)
(Continued)
Year Ended December 31
1994 1993 1992 1991 1990
Income before income taxes $40,853 $46,882 $35,584 $32,222 $23,070
Add:
Fixed charges, Southwestern 10,616 10,702 11,636 11,398 12,040
Fixed charges, NOARK (1) 3,642 3,312 901 13 0
Amortization of capitalized
interest 813 877 470 341 249
Deduct:
Interest capitalized on oil and
gas properties 1,562 1,441 1,491 1,404 1,374
Earnings for computation $54,362 $60,132 $47,100 $42,570 $33,985
Fixed charges
Southwestern:
Interest on indebtedness $10,285 $10,399 $11,335 $11,155 $11,843
Amortization of debt discount
and expense 180 174 144 85 79
Portion of rents representative
of interest 150 129 156 158 118
Total fixed charges,
Southwestern 10,615 10,702 11,835 11,398 12,040
NOARK(2) 4,605 4,199 3,661 371 0
Total fixed charges $15,220 $14,901 $15,296 $11,769 $12,040
Ratio of earnings to fixed charges 3.6x 4.0x 3.1x 3.6x 2.8x
__________________
(1) Represents Southwestern's ownership share (47.93% at September 30, 1995)
of interest on indebtedness and amortization of debt expense of the NOARK
Pipeline System, Limited Partnership ("NOARK").
(2) Represents Southwestern's 60% guaranty of NOARK's interest on
indebtedness and amortization of debt expense.
Exhibit 24.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated February 7, 1995 incorporated by reference in
Southwestern Energy Company's Form 10-K for the year ended
December 31, 1994 and to all references to our Firm included in
this Amendment No. 1 to the Registration Statement File No. 33-
63895.
Arthur Andersen LLP
Tulsa, Oklahoma
November 16, 1995
