As filed with the Securities and Exchange Commission
on November 1, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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_________________________________________
CALCULATION OF REGISTRATION FEE
Title of Proposed
Each Class Proposed Maximum Amount
of Securi- Amount to Maximum Aggregate of Regi-
ties to be be Offering Price Offering stration
Registered Registered(1) Per Unit Price(2) Fee
- ---------- ------------- -------------- --------- -------
Debt $250,000,000 $250,000,000 $86,207
Securities
(1) For Debt Securities issued with an original issue
discount, the amount to be registered is calculated as the
initial accreted value thereof.
(2) Estimated solely for purposes of calculating the
registration fee. In no event will the aggregate initial price
of the Debt Securities exceed $250,000,000. The aggregate
offering price per unit has been omitted pursuant to Securities
Act Release No. 6964.
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>
Subject to Completion, dated November 1, 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 and June 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.
Six Months Ended Year ended
June 30, December 31,
---------------- ----------------------------------------
1995 1994 1994 1993 1992 1991 1990
Ratio of
earnings
to fixed
charges 2.3x 5.1x 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 November , 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 any 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
either (x) 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 (and
accompanied by a copy of) a ruling of the U.S. Internal Revenue
Service to the same effect unless there has been a change in
applicable U.S. federal income tax law after the date of the
Indenture such that a ruling is no longer required or (y) a
ruling directed to the Trustee received from the U.S. Internal
Revenue Service to the same effect as the aforementioned opinion
of counsel, 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 *
Accountants' Fees and Expenses *
Legal Fees and Expenses *
Blue Sky Fees and Expenses *
Rating Agency Fees *
Miscellaneous *
-------
Total $
=======
-----------------
* To be furnished by amendment.
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.*
1.2 - Form of Sales 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 - Opinion of Cleary, Gottlieb, Steen & Hamilton.*
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 to this Registration Statement).*
25 - Power of Attorney (included on signature page).
26 - Statement of Eligibility of Trustee on Form T-1.
________________
*To be furnished by amendment.
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 registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fayetteville, State of Arkansas, on
November 1, 1995.
SOUTHWESTERN ENERGY COMPANY
By /s/ Stanley D. Green
------------------------------
Stanley D. Green
Executive Vice President -
Finance and Corporate Development,
and Chief Financial Officer
Each person whose signature appears below hereby constitutes
and appoints Stanley D. Green and Gregory D. Kerley, or any one
or more of them, his true and lawful attorney-in-fact, for him
and in his name, place and stead, to sign any and all amendments
(including post-effective amendments) to this registration
statement and to cause the same to be filed with the Securities
and Exchange Commission, hereby granting to said attorneys-in-
fact full power and authority to do and perform all and every act
and thing whatsoever requisite or desirable to be done in and
about the premises as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all acts and things that said attorneys-in-fact may do
or cause to be done by virtue of these presents.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities indicated on November 1, 1995:
Signature Title
/s/ Charles E. Sharlau Director, Chairman, and Chief
- ---------------------------- Executive Officer
Charles E. Scharlau
/s/ Stanley D. Green Executive Vice President -
- ---------------------------- Finance and Corporate Development,
Stanley D. Green and Chief Financial Officer
/s/ Gregory D. Kerley Vice President - Treasurer and
- ---------------------------- Secretary, and Chief Accounting
Gregory D. Kerley Officer
/s/ John Paul Hammerschmidt Director
- ----------------------------
John Paul Hammerschmidt
/s/ Robert L. Howard Director
- ----------------------------
Robert L. Howard
/s/ Kenneth R. Mourton Director
- ----------------------------
Kenneth R. Mourton
/s/ Charles E. Sanders Director
- ----------------------------
Charles E. Sanders
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequentially
Number Description Numbered
Page
1.1 - Form of Underwriting Agreement.*
1.2 - Form of Sales 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 - Opinion of Cleary, Gottlieb, Steen & Hamilton.*
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 to this Registration Statement).*
25 - Power of Attorney (included on signature page).
26 - Statement of Eligibility of Trustee on Form T-1.
_________________
* To be furnished by amendment.
<PAGE>
Draft of November 1, 1995
- -----------------------------------------------------------------
SOUTHWESTERN ENERGY COMPANY
to
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
INDENTURE
________________________________
Dated as of November __, 1995
________________________________
Providing for Issuance of
Debt Securities in Series
- -----------------------------------------------------------------
<PAGE>
<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>
<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 Authentication15
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 Indenture31
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 Defeasance34
4.7 Deposited Money and Government Obligations to Be
Held in Trust . . . . . . . . . . . . . . 36
<PAGE>
<PAGE>
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 Trustee42
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 Permitted50
ARTICLE 8 SUPPLEMENTAL INDENTURES . . . . . . . . . . 50
8.1 Supplemental Indentures Without Consent of Holders51
8.2 Supplemental Indentures With Consent of Holders52
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 Indentures53
ARTICLE 9 COVENANTS . . . . . . . . . . . . . . . . . . 54
9.1 Payment of Principal, Premium, if any, and Interest54
9.2 Maintenance of Office or Agency . . . . . 54
9.3 Money for Securities Payments to Be Held in
<PAGE>
<PAGE>
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 Law60
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 Securities64
11.3 Redemption of Securities for Sinking Fund 65
<PAGE>
<PAGE>
INDENTURE, dated as of November __, 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.
<PAGE>
<PAGE>
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.
<PAGE>
<PAGE>
"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
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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.
<PAGE>
<PAGE>
"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
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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 defini-
tion, 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
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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
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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
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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
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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.
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(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, agree-
ment 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.
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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
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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
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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
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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.
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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;
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(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
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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
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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 regula-
tions 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 appro-
priate 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.
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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;
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(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
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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.
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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 defini-
tive 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
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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
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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
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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 in-
struct 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
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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 Inden-
ture, 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
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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
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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 Regis-
tered 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 "regis-
tration-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
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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
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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 sur-
rendered 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.
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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 cou-
pons 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
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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
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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 apper-
taining 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
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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
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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
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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.
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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
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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
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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
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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 pro-
ceeding 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
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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
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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.
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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'
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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
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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
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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
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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.
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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 sup-
plemental 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.
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(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
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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
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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:
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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.
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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
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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
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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
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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
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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
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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.
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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
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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:
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(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
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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
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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.
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
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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;
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(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
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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
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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 Sec-
tion 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
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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.
<PAGE>
<PAGE>
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:
<PAGE>
EXHIBIT 12
SOUTHWESTERN ENERGY COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
($ in 000's)
Six Months Ended
June 30
_____________________
1995 1994
Income before income taxes $12,271 $28,989
Add:
Fixed charges, Southwestern 6,123 4,899
Fixed charges, NOARK (1) 1,902 1,626
Amortization of capitalized
interest 414 436
Deduct:
Interest capitalized on oil and
gas properties 872 771
Earnings for computation $19,838 $35,179
Fixed charges
Southwestern:
Interest on indebtedness $ 5,966 $ 4,744
Amortization of debt discount
and expense 82 80
Portion of rents representative
of interest 75 75
Total fixed charges,
Southwestern 6,123 4,899
NOARK(2) 2,382 2,049
Total fixed charges $ 8,505 $ 6,948
Ratio of earnings to fixed charges 2.3x 5.1x
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 June 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 registration statement dated November 1, 1995.
Arthur Andersen LLP
Tulsa, Oklahoma
November 1, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
----------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
----------------
SOUTHWESTERN ENERGY COMPANY
(Exact name of obligor as specified in its charter)
Arkansas 71-0205415
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1083 Sain Street, P.O. Box 1408
Fayetteville, Arkansas 72702-1408
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National
Bank of Chicago, a national banking association
organized and existing under the laws of the United
States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City
of Chicago and State of Illinois, on the 26th day of
October, 1995.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
R. D. Manella
Vice President
* Exhibit 1,2,3 and 4 are herein incorporated by reference to
Exhibits bearing identical numbers in Item 12 of the Form T-1 of
The First National Bank of Chicago, filed as Exhibit 26 to the
Registration Statement on Form S-3 of The CIT Group Holdings,
Inc., filed with the Securities and Exchange Commission on
February 16, 1993 (Registration No. 33-58418).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 26, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Southwestern Energy Company and The First National Bank of
Chicago, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that
the reports of examinations of the undersigned, made by Federal
or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
R. D. Manella
Vice President
<PAGE>
EXHIBIT 7
Legal Title Call Date: 06/30/95 ST-BK:
of Bank: The First National 17-1630 FFIEC 031
Bank of Chicago Page RC-1
Address: One First National
Plaza, Suite 0460
City, State
Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1995
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding of the last
business day of the quarter.
Schedule RC--Balance Sheet
C400
Dollar Amounts in BIL MIL THOU <-
in Thousands RFCD
ASSETS
1. Cash and
balances
due from
depository
institutions
(from
Schedule
RC-A):
a. Noninterest-
bearing
balances
and currency
and coin(1) 0081 3,184,875 1.a.
b. Interest-
bearing
balances(2) 0071 8,932,069 1.b.
2. Securities
a. Held-to-
maturity
securities
(from
Schedule RC-B,
column A) 1754 249,502 2.a.
b. Available-for-
sale securities
(from Schedule
RC-B, column D) 1773 536,856 2.b.
3. Federal funds sold
and securities
purchased under
agreements to
resell in domestic
offices of the
bank and its Edge
and Agreement
subsidiaries, and
in IBFs:
a. Federal Funds sold 0276 2,897,736 3.a.
b. Securities
purchased
under agreements
to resell 0277 1,417,129 3.b.
4. Loans and lease
financing receivables:
a. Loans and leases,
net of unearned
income (from
Schedule RC-C) RCFD 2122 16,567,408 4.a.
b. LESS: Allowance
for loan and
lease losses RCFD 3123 358,877 4.b.
c. LESS: Allocated
transfer risk
reserve RCFD 3128 0 4.c.
d. Loans and leases,
net of unearned
income, allowance,
and reserve
(item 4.a minus 4.b
and 4.c) 21251 6,208,531 4.d.
5. Assets held in trading
accounts 35451 3,486,931 5.
6. Premises and fixed
assets (including
capitalized leases) 2145 516,279 6.
7. Other real estate
owned (from Schedule
RC-M) 2150 11,216 7.
8. Investments in
unconsolidated
subsidiaries and
associated companies
(from Schedule RC-M) 2130 12,946 8.
9. Customers' liability
to this bank on
acceptances
outstanding 2155 501,943 9.
10. Intangible assets
(from Schedule RC-M) 2143 111,683 10.
11. Other assets
(from Schedule RC-F) 2160 1,258,270 11.
12. Total assets (sum
of items 1
through 11) 2170 49,325,966 12.
_________________
(1) Includes cash items in process of collection and unposted
debits.
(2) Includes time certificates of deposit not held in trading
accounts.
<PAGE>
Legal Title Call Date: 06/30/95 ST-BK:
of Bank: The First National 17-1630 FFIEC 031
Bank of Chicago Page RC-2
Address: One First National
Plaza, Suite 0460
City, State
Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
Schedule RC--Continued
Dollar Amounts in BIL MIL THOU
in Thousands
LIABILITIES
13.Deposits:
a. In domestic
offices
(sum of
totals of
columns A
and C from
Schedule
RC-E,
part 1) RCON 2200 14,889,235 13.a.
(1) Non-
interest-
bearing(1) RCON 6631 5,895,584 13.a.(1)
(2) Interest-
bearing RCON 6636 8,993,651 13.a.(2)
b. In foreign
offices,
Edge and
Agreement
subsidiaries,
and IBFs
(from
Schedule
RC-E,
part II) RCFN 2200 13,289,760 13.b.
(1) Non-
interest
bearing RCFN 6631 315,549 13.b.(1)
(2) Int-
erest-
bearing RCFN 6636 12,974,211 13.b.(2)
14. Federal
funds
purchased
and secur-
ities sold
under
agreements
to repurchase
in domestic
offices of
the bank and
ofits Edge and
Agreement
subsidiaries,
and in IBFs:
a. Federal
funds
purchased RCFD 0278 2,942,186 14.a.
b. Securities
sold under
agreements
to repur-
chase RCFD 0279 1,160,512 14.b.
15. a. Demand notes
issued to the
U.S. Treasury RCON 2840 112,768 15.a.
b. Trading
Liabilities RCFD 3548 7.872,221 15.b.
16. Other borrowed
money:
a. With original
maturity of
one year or
less RCFD 2332 2,402,829 16.a.
b. With original
maturity of
more than one
year RCFD 2333 643,987 16.b.
17. Mortgage
indebtedness and
obligations under
capitalized
leases RCFD 2910 278,108 17.
18. Bank's liability
on acceptance
executed and
outstanding RCFD 2920 501,943 18.
19. Subordinated
notes and
debentures RCFD 3200 1,225,000 19.
20. Other liabilities
(from Schedule
RC-G) RCFD 2930 981,938 20.
21. Total liabilities
(sum of items
13 through 20) RCFD 2948 46,300,487 21.
22. Limited-Life
preferred stock
and related
surplus RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual
preferred stock
and related
surplus RCFD 3838 0 23.
24. Common stock RCFD 3230 200,858 24.
25. Surplus (exclude
all surplus
related to
preferred stock) RCFD 3839 2,314,642 25.
26. a. Undivided
profits and
capital
reserves RCFD 3632 510,093 26.a.
b. Net unrealized
holding gains
(losses) on
available-
for-sale
securities RCFD 8434 (880) 26.b.
27. Cumulative
foreign currency
translation
adjustments RCFD 3284 766 27.
28. Total equity
capital (sum of
items 23
through 27) RCFD 3210 3,025,479 28.
29. Total liabilities,
limited-life
preferred stock,
and equity
capital (sum of
items 21, 22,
and 28) RCFD 3300 49,325,966 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most Number
comprehensive level of auditing work performed for -----------------
the bank by independent external auditors as of | RCFD 6724 N/A |
any date during 1993 ------------------
M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
__________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
