<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 17, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
QUESTAR PIPELINE COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
UTAH 4922 87-0307414
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
------------------------
180 EAST 100 SOUTH STREET
P.O. BOX 45360
SALT LAKE CITY, UTAH 84145-0360
(801) 324-2400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GARY G. SACKETT
QUESTAR PIPELINE COMPANY
180 EAST 100 SOUTH STREET
P.O. BOX 45360
SALT LAKE CITY, UTAH 84145-0360
(801) 324-5563
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copies to:
<TABLE>
<S> <C>
RICHARD J. GROSSMAN, ESQ. PAUL C. PRINGLE, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP BROWN & WOOD LLP
919 THIRD AVENUE 555 CALIFORNIA STREET
NEW YORK, NEW YORK 10022 SUITE 5000
SAN FRANCISCO, CALIFORNIA 94104
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable from time to time after the effective date of this Registration
Statement as determined in light of market conditions.
------------------------
If the only securities being registered on this form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
reinvestment plans, check the following box. /x/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / __________________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER NOTE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Medium-Term Notes....................... $175,000,000 100%* $175,000,000* $51,625
</TABLE>
* Estimated solely for purposes of calculating the registration fee.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 17, 1998
PROSPECTUS
$175,000,000
QUESTAR PIPELINE COMPANY
(an indirect subsidiary of Questar Corporation)
MEDIUM-TERM NOTES, SERIES A
DUE FROM NINE MONTHS TO 30 YEARS FROM DATE OF ISSUE
------------------------
Questar Pipeline Company (the 'Company' or 'Questar Pipeline') may offer
from time to time up to $175,000,000 aggregate initial offering amount of its
Medium-Term Notes, Series A (the 'Notes'). Each Note will mature on a Business
Day (as hereinafter defined) from nine months to 30 years from the date of
issue, as selected by the purchaser and agreed to by the Company. Redemption
provisions, if any, for each Note will be established by the Company at the date
of issue and will be specified therein and in the applicable Pricing Supplement
hereto (the 'Pricing Supplement'). Unless otherwise specified in the applicable
Pricing Supplement, the Notes will be issued only in denominations of $1,000 or
any amount in excess thereof which is an integral multiple of $1,000. See
'Description of the Medium-Term Notes.'
The interest rate or interest rate formula applicable to each Note and other
variable terms of the Notes will be established by the Company at the date of
issuance of such Note and will be set forth therein and specified in the
applicable Pricing Supplement. Interest rates, interest rate formulae and such
other variable terms are subject to change by the Company but no change will
affect any Notes already issued or as to which offers to purchase have been
accepted by the Company. Unless otherwise specified in the applicable Pricing
Supplement, each Note will be issued in registered book-entry form (a
'Book-Entry Note') or in registered definitive form (a 'Definitive Note'), as
set forth in the applicable Pricing Supplement. Each Book-Entry Note will be
represented by a global security deposited with or on behalf of The Depository
Trust Company (or such other depositary as is identified in an applicable
Pricing Supplement) (the 'Depositary') and registered in the name of the
Depositary's nominee. Interests in Book-Entry Notes will be shown on, and
transfers thereof will be effected only through, records maintained by the
Depositary (with respect to its participants) and the Depositary's participants
(with respect to beneficial owners).
Unless otherwise indicated in the applicable Pricing Supplement, the Notes
will bear interest at a fixed rate or rates (the 'Fixed Rate Notes'), or at a
rate or rates determined by reference to the Commercial Paper Rate (the
'Commercial Paper Rate Notes'), the Federal Funds Rate (the 'Federal Funds Rate
Notes'), LIBOR (the 'LIBOR Notes'), the Prime Rate (the 'Prime Rate Notes') or
the Treasury Rate (the 'Treasury Rate Notes') as adjusted by the Spread and/or
Spread Multiplier (each as hereinafter defined), if any, applicable to such
Notes. Commercial Paper Rate Notes, Federal Funds Rate Notes, LIBOR Notes, Prime
Rate Notes and Treasury Rate Notes are collectively referred to herein as
'Floating Rate Notes.' The Company may also issue Discount Notes. See
'Description of the Medium-Term Notes.'
Interest on Fixed Rate Notes will accrue from their date of issue and,
unless otherwise specified in the applicable Pricing Supplement, will be payable
semiannually in arrears on each June 1 and December 1 of each year and at
Maturity. Unless otherwise specified in the applicable Pricing Supplement, the
rate of interest on each Floating Rate Note will be reset daily, weekly,
monthly, quarterly, semi-annually or annually, as set forth therein and
specified in the applicable Pricing Supplement, and interest on each Floating
Rate Note will accrue from its date of issue and will be payable in arrears
monthly, quarterly, semi-annually or annually, as set forth therein and
specified in the applicable Pricing Supplement, and at Maturity. As of June 30,
1998, the amount of Company indebtedness outstanding which was senior to or pari
passu with the Notes was $178,300,000 (including short-term debt of
$63,300,000).
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PRICING SUPPLEMENT HERETO. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PRICE TO AGENTS' DISCOUNTS PROCEEDS TO
PUBLIC (1) AND COMMISSIONS (2)(3) COMPANY (2)(4)
<S> <C> <C> <C>
Per Note.............................. 100% .125%-.750% 99.875%-99.250%
Total................................. $175,000,000 $218,750-$1,312,500 $174,781,250-$173,687,500
</TABLE>
(1) Unless otherwise specified in the applicable Pricing Supplement, Notes will
be issued at 100% of their principal amount.
(2) The Company will pay a commission to Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Brothers Inc (the 'Agents')
in the form of a discount, ranging from .125% to .750% of the principal
amount of any Note, depending upon its Stated Maturity, sold through such
Agent, and may sell Notes to either Agent, as principal, at a discount for
resale to investors or other purchasers at varying prices related to
prevailing market prices at the time of resale to be determined by such
Agent. No commission will be payable on any sales made directly by the
Company.
(3) The Company has agreed to indemnify the Agents against certain liabilities,
including liabilities under the Securities Act of 1933, as amended. See
'Plan of Distribution.'
(4) Before deducting expenses payable by the Company estimated at $304,000.
------------------------
The Notes are being offered on a continuing basis by the Company to or
through the Agents, who have agreed to use their reasonable efforts to solicit
offers to purchase the Notes. The Notes may also be sold by the Company to
either Agent at a discount for resale to one or more investors or other
purchasers at varying prices related to prevailing market prices at the time of
resale, as determined by such Agent. The Company may also sell the Notes
directly to investors on its own behalf in those jurisdictions where it is
authorized to do so or to or through other agents. Unless otherwise specified in
the applicable Pricing Supplement, the Notes will not be listed on any
securities exchange, and there can be no assurance that all of the Notes offered
will be sold or that there will be a secondary market for the Notes. The Company
reserves the right to withdraw, cancel or modify the offer made hereby without
notice. The Company or an Agent, if it solicits the offer, may reject any offer
to purchase Notes in whole or in part. See 'Plan of Distribution.'
------------------------
MERRILL LYNCH & CO. SALOMON SMITH BARNEY
------------------------
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
'Commission') a Registration Statement on Form S-3 (which term shall encompass
all amendments, exhibits and schedules thereto (the 'Registration Statement'))
under the Securities Act of 1933, as amended (the 'Securities Act'), with
respect to the Notes being offered hereby. This Prospectus does not contain all
the information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission. For
further information with respect to the Company and the Notes being offered
hereby, reference is hereby made to such Registration Statement, including the
exhibits filed as part thereof.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), and in accordance
therewith files periodic reports and other information with the Commission. The
Registration Statement and the exhibits thereto filed by the Company with the
Commission, as well as the periodic reports and other information so filed under
the Exchange Act, may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as at the following regional offices:
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661;
and 7 World Trade Center, 13th Floor, Suite 1300, New York, New York 10048.
Copies of such information may also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. In addition, such information may be accessed
electronically by means of the Commission's home page on the Internet
(http://www.sec.gov).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated into this Prospectus by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1997 as
amended by the Form 10-K/A dated April 2, 1998;
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
3. Quarterly Report on Form 10-Q for the quarter ended June 30, 1998;
and
4. Current Report on Form 8-K dated July 2, 1998.
All documents filed by the Company with the Commission pursuant to Sections
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 Notes shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be 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 or 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 will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the documents incorporated herein by reference, other than
exhibits to such documents. Requests for such copies should be directed to:
Corporate Secretary, Questar Pipeline Company, 180 East 100 South Street, Salt
Lake City, Utah 84145-0360; telephone (801) 324-5202.
In connection with an offering of Notes purchased by one or more Agents as
principal on a fixed offering price basis, such Agent(s) may engage in
transactions that stabilize, maintain or otherwise affect the market price of
such Notes. Such transactions may include stabilizing and the purchase of Notes
to cover short positions of such Agent(s). For a description of these
activities, see 'Plan of Distribution.'
2
<PAGE>
THE COMPANY
The Company, a subsidiary of Questar Corporation ('Questar'), is in the
business of transporting and storing natural gas in the Rocky Mountain States of
Utah, Wyoming and Colorado. Both Questar Pipeline and its affiliate Questar Gas
Company ( 'Questar Gas,' formerly Mountain Fuel Supply Company) are directly
owned by Questar Regulated Services Company which is a sub-holding company of
Questar Corporation. The three companies make up Questar's Regulated Services
unit.
As an open-access pipeline, the Company transports gas for affiliated and
non-affiliated customers. It owns and operates the large underground Clay Basin
gas storage facility, located in northeastern Utah, as well as other underground
storage sites in Utah and Wyoming. The Company is a partner in a pipeline
partnership with Overthrust Pipeline Company, and the Company's subsidiary is a
partner in a pipeline partnership which owns TransColorado Gas Transmission
Company. In 1997, the ownership interest by the Company and such subsidiary in
both partnerships was increased.
The Company transacts a significant amount of business with affiliated
companies, particularly Questar Gas, a state-regulated gas distribution company
that serves about 644,000 customers in Utah, southwestern Wyoming and
southeastern Idaho. Questar Gas has contractual rights to transport 800,000
decatherms ('Dth') of gas per day on the Company's transmission system, which
represents approximately 68% of reserved system capacity. (A Dth is equivalent
to one million British thermal units ('Btu') of heat energy. In the Company's
system, each thousand cubic feet ('Mcf') of gas contains about 1.05 Dth of heat
energy). The primary term of this contract expires on June 30, 1999, but the
parties currently expect to extend the contract because Questar Gas needs long-
term firm capacity. Questar Gas has contracted for 24% of the firm storage
capacity available at Clay Basin and has storage contracts at smaller Company
storage reservoirs as well. Questar Pipeline transports gas owned by Questar Gas
that has been produced by Wexpro Company, another affiliate, as well as natural
gas purchased directly by Questar Gas from field producers and other suppliers.
The Company also transports gas marketed by an affiliate, Questar Energy Trading
Company. Effective January 1, 1997, Questar Corporation transferred ownership of
common stock issued by the Company and Questar Gas to Questar Regulated
Services. On that date, Questar Pipeline and Questar Gas transferred 461
employees to the new company, which was formed to provide administrative,
accounting, engineering, legal and related services to its two subsidiaries.
The Company is regulated by the Federal Energy Regulatory Commission (the
'FERC'), which administers the Natural Gas Act of 1938 and other federal laws.
The FERC regulates the Company as to rates charged, construction and abandonment
of facilities, and accounting policies.
The Company has experienced intensified competition in its markets in
recent years. Regulatory changes have significantly increased customers'
alternatives for managing energy requirements, including gas supplies. The
Company actively competes with other interstate pipelines for transportation
volumes throughout the Rocky Mountain region.
The Company's growth strategies are designed to enhance its strategic
position in the center of the Rocky Mountain energy production and
transportation area. The Company's primary strategic assets are its centrally
located and interconnected transmission system and its Clay Basin storage
facility.
The Company's 1,763-mile system has interconnections with six interstate
pipelines, enabling regional shippers and producers to move gas to markets
throughout the U.S. During 1998, the Company plans to complete a 41-mile
pipeline to move gas northward from Clay Basin storage in eastern Utah to
interconnection points in southwestern Wyoming. Capacity on this line is fully
committed under firm service contracts. The Clay Basin gas storage reservoir is
the largest underground facility of its type in the Rocky Mountains. In 1998,
storage capacity at Clay Basin was expanded by 5 billion cubic feet ('Bcf') of
working gas and 2.5 Bcf of cushion gas, bringing total storage capacity up to
117.5 Bcf. All storage capacity at Clay Basin is fully contracted for under
long-term contracts.
The Company's subsidiary, Questar TransColorado, is a 50% partner in the
TransColorado Gas Transmission Company. Construction of the TransColorado
pipeline will be one of the largest construction projects in Questar's history.
KN Energy, Inc.'s subsidiary, KN TransColorado, is the other partner in the
$260-million pipeline which, when constructed, will run 292 miles from the
Company's system in northwestern Colorado to interconnections near Blanco, New
Mexico. KN Energy and El Paso Energy Corporation completed
3
<PAGE>
phase one of the project in December 1996, a 22-mile section linking the Blanco
facilities with nearby producers in the San Juan Basin. El Paso Energy
Corporation sold its interest in phase one to Questar TransColorado in 1997, but
continues to operate and receive income from phase one until the in-service date
of the second phase.
Questar TransColorado and KN TransColorado have commenced construction on
the 270-mile second phase, with the Company providing construction management
and design engineering. The project's in-service target is the fourth quarter of
1998. The new line will transport up to 300 million cubic feet ('MMcf') of gas
per day from western Colorado and other producing basins to California and
midwestern markets. Such deliveries are possible through interconnections with
El Paso Energy and TransWestern pipelines at Blanco, New Mexico. The tariff rate
on TransColorado is expected to be about $.35 per Dth. However, TransColorado
will likely be required to offer substantial discounts to shippers during the
first several years of service because of competitive market conditions. The
project anticipates subscriptions totaling 200 MMcf per day of capacity from
affiliates of its sponsors for a minimum of three years at a discounted rate. It
also has a firm commitment for 10 MMcf per day from one shipper. Four additional
shippers have made contingent commitments totaling 90 MMcf per day.
TransColorado Gas Transmission Company's capital structure is expected to
reflect 70% debt leverage as approved by the FERC. Initially, this debt will
likely be a combination of non-recourse bank debt supported by shipper contracts
and bank debt on the books of the sponsors or guaranteed as to repayment by the
sponsors. Questar TransColorado has the right to exercise an election to sell
its interest in the TransColorado pipeline during the third year of operation to
KN TransColorado.
On June 25, 1998, the Company announced that it had reached an agreement in
principle with ARCO Pipe Line Company to acquire an oil pipeline running from
the Paradox producing basin of northwestern New Mexico to Long Beach,
California. The purchase price of the line is $40 million with financial closing
expected on or about September 30, 1998. The Company intends to convert this
line to transport natural gas to customers in the Los Angeles basin. Conversion
costs are expected to add up to $60 million to the total cost of the project.
Such conversion is expected to continue for 18-24 months.
As of December 31, 1997, the Company had 164 employees, compared to 352 at
the end of 1996. This decrease reflects a transfer of employees on January 1,
1997 to Questar Regulated Services, which provides administrative services to
the Company and Questar Gas. In June 1998, the Company, along with Questar
Regulated Services and Questar Gas, offered an early retirement incentive to
employees who were at least 52 years of age with five years of service as of
July 31, 1998. The offer was accepted by 22 employees of the Company, most of
whom will not be replaced. The Company expects to capitalize and amortize the
early retirement program costs it is allocated consistent with FERC accounting
practices.
The Company's principal executive and business office is located at 180
East 100 South Street, P.O. Box 45360, Salt Lake City, Utah 84145-0360 and its
telephone number is (801) 324-2400.
USE OF PROCEEDS
The net proceeds from the sale of the Notes will be used to finance a
portion of the Company's capital expenditures, estimated to be $162.1 million
for 1998, and to repay a portion of short-term debt. The Company's portion of
capital expenditures for the TransColorado pipeline are estimated to total $64.3
million in 1998. Capital expenditures for the ARCO acquisition are estimated to
be $43.0 million in 1998. At June 30, 1998, short-term debt totaled $63.3
million and had an interest rate of 5.70% per annum. Short-term debt was
incurred for general corporate purposes including working capital needs and for
the early repurchase of $20 million of the Company's 9 7/8% debentures due 2020.
The Company may also use the remaining proceeds to repurchase additional amounts
of its debentures.
4
<PAGE>
CAPITALIZATION
The following table shows the capitalization of the Company as of June 30,
1998.
<TABLE>
<CAPTION>
JUNE 30, 1998
------------------------
AMOUNT PERCENTAGE
-------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-term debt(1)......................................................... $114,573 37.2%
Common shareholder's equity............................................... 193,425 62.8%
-------- ----------
Total capitalization...................................................... $307,998 100.0%
======== ==========
Short term-debt........................................................... $ 63,300
========
</TABLE>
- ------------------
(1) This amount reflects a discount of $427,000.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
TWELVE MONTHS
YEARS ENDED DECEMBER 31, ENDED
------------------------------------ JUNE 30,
1993 1994 1995 1996 1997 1998
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)........................ 3.44 3.26 3.27 3.58 4.02 4.13
</TABLE>
- ------------------
(1) For purposes of this presentation, earnings represent income from continuing
operations before income taxes and fixed charges. Fixed charges consist of
total interest charges, amortization of debt issuance costs and debt
discounts, and the interest portion of rental costs.
DESCRIPTION OF THE MEDIUM-TERM NOTES
The Notes will be issued as a series of debt securities under an Indenture
(the 'Indenture') dated as of August 17, 1998, between the Company and First
Security Bank, N.A., as trustee (the 'Trustee'). The following information is a
summary of certain provisions of the Notes and of the Indenture and does not
purport to be complete and is qualified in its entirety by reference to the
Indenture, a copy of which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. Capitalized terms used but not
defined herein have the meanings given to them in the Indenture or the Notes, as
applicable. The term 'Securities' used herein refers to all debt securities
issued or capable of being issued from time to time under the Indenture and
includes the Notes. The terms and conditions described below apply to each Note
unless otherwise indicated in the applicable Pricing Supplement.
GENERAL
The Indenture provides that, in addition to the Notes, additional
Securities in one or more series (including both interest bearing and original
issue discount securities) may be issued thereunder, without limitation as to
aggregate principal amount of all Securities issuable thereunder. The Notes will
be unsecured obligations of the Company and will rank in parity with all other
unsecured and unsubordinated indebtedness of the Company. Other than a
limitation on liens covenant, the Indenture does not contain restrictive
covenants which would require the Company to maintain certain financial ratios
or restrict the Company's ability to incur additional indebtedness. In addition,
the Indenture permits the issuance of Notes which do not pay interest for stated
periods of time and which are issued with original issue discount.
The Notes being offered hereby constitute a separate series of Securities
under the Indenture and are currently limited to $175,000,000 aggregate initial
offering amount. Such series may be reopened and the aggregate initial offering
amount of the Notes may be increased from time to time. The Notes will be
offered on a continuing basis, and each Note will mature on a Business Day (as
defined below), not less than nine months nor more than 30 years from its date
of issue, as selected by the initial purchaser and agreed to by the Company. The
Notes will be denominated and be payable in United States dollars.
5
<PAGE>
The Pricing Supplement relating to any Note will set forth the principal
amount, interest rate, issue price and Agent's commission, original issue and
maturity dates, redemption and repayment provisions, if any, and other material
terms of such Note.
Unless otherwise specified in the applicable Pricing Supplement, each Note
will be issued in registered book-entry form (a 'Book-Entry Note') or in
registered definitive form (a 'Definitive Note'), in the denomination of $1,000
or any amount in excess thereof which is an integral multiple of $1,000.
Book-Entry Notes may be transferred or exchanged only through a participating
member of The Depository Trust Company (or such other depositary as is
identified in an applicable Pricing Supplement) (the 'Depositary'). See 'Book-
Entry Notes; Global Securities' below. Registration of transfers of Definitive
Notes will be made at the Corporate Trust Office of the Trustee. No service fee
will be charged by the Company, the Trustee or the Security Registrar for any
such registration of transfer or exchange of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith (other than exchanges pursuant to Sections 304,
906 or 1107 of the Indenture, not involving any transfer).
As used herein, 'Business Day,' means any day that is not a Saturday or
Sunday, and that in The City of New York is not a day on which banking
institutions are generally authorized or obligated by law or executive order to
close, and, with respect to any LIBOR Note, is a London Business Day. Unless
otherwise specified in the applicable Pricing Supplement, 'London Business Day'
means any day on which dealings in deposits in United States dollars are
transacted in the London interbank market.
As used herein, 'Maturity', when used with respect to any Note, means the
date on which the principal of such Note or an installment of principal becomes
due and payable as provided in the Note or the Indenture, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, repayment at
the option of the Holder or otherwise.
As used herein, 'Stated Maturity', when used with respect to any Note or
any installment of principal thereof or interest thereon, means the date
specified in such Note as the fixed date on which the principal of such Note or
such installment of principal or interest is due and payable.
Under the Indenture, Notes may be issued at a discount from the stated
principal amount thereof or with such terms (such as contingent interest,
interest holidays, irregular accrual periods, interest payable in additional
Notes, stepped rates, rates based on multiple or non-conventional interest
indices or Notes on which payments are tied to the value of a single stock, a
basket of stocks, a commodity or a stock or commodities index) so as to cause
the Notes to be subject to the original issue discount rules of federal, state,
local or foreign tax laws. In the event Notes are issued at such a discount or
with such terms so as to cause original issue discount rules to apply, the terms
of such Notes and additional disclosure regarding the federal income tax
treatment of such Notes as well as certain other considerations will be provided
in the applicable Pricing Supplement relating thereto.
Unless otherwise indicated in a Pricing Supplement, the covenants contained
in the Indenture and the Notes would not necessarily afford Holders of the Notes
protection in the event of a highly leveraged or other transaction involving the
Company that may adversely affect Holders.
Interest rates offered by the Company with respect to the Notes may differ
depending upon, among other factors, the aggregate principal amount of Notes
purchased in any single transaction. Notes with similar variable terms other
than interest rates, as well as Notes with different other variable terms, may
be offered concurrently to different investors. Interest rates or formulas and
other terms of Notes are subject to change by the Company from time to time, but
no such change will affect any Note previously issued or as to which an offer to
purchase has been accepted by the Company.
PAYMENTS
For Definitive Notes, payments of principal, premium, if any, and interest
payable at Maturity will be made in immediately available funds at the Corporate
Trust Office of the Trustee in Salt Lake City, Utah or at such other place as
the Company may designate, provided that the Definitive Note is presented to the
Trustee in time for the Trustee to make such payments in such funds in
accordance with its normal procedures. Interest (other than interest payable at
Maturity) will be paid by check mailed to the address of the Person entitled
thereto as it appears in the Security Register as of the Regular Record Dates
or, at the option of the Company, by wire transfer
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to an account maintained by such Person with a bank located in the United
States. Notwithstanding the foregoing, a Holder of $10,000,000 or more in
aggregate principal amount of Notes having the same Interest Payment Dates (as
defined below) shall be entitled, upon written request received by the Trustee
prior to the Regular Record Date in respect of an interest payment, or the date
which is fifteen days before the Stated Maturity or date of redemption or
repayment of the principal of the Notes, as the case may be, to receive payments
of principal, premium, if any, and interest by wire transfer to an account
maintained by such Holder with a bank located in the United States; provided,
however, that no payment of principal and premium, if any, will be made without
prior presentment and surrender of the Notes. If any Stated Maturity or date of
redemption or repayment would otherwise be a day that is not a Business Day,
payments due on any such day need not be made on such day, but may be made on
the next succeeding Business Day (or, in the case of a LIBOR Note, if such day
falls in the next succeeding calendar month, the immediately preceding Business
Day), with the same force and effect as if made on the due date, and no interest
shall accrue for the period from such due date to such succeeding Business Day.
The total amount of any principal, premium, if any, or interest due on any
Global Security (as defined below) representing one or more Book-Entry Notes on
any Interest Payment Date or at Maturity will be made available to the Trustee
on such date. As soon as practicable thereafter, the Trustee will make such
payments to the Depositary in accordance with existing arrangements between the
Trustee and the Depositary. The Depositary will allocate such payments to each
Book-Entry Note represented by such Global Security and make payments to the
registered owners or Holders thereof in accordance with its existing operating
procedures. Neither the Company nor the Trustee shall have any responsibility or
liability for such payments by the Depositary. So long as the Depositary or its
nominee is the registered owner of any Global Security, the Depositary or its
nominee, as the case may be, will be considered the sole owner or Holder of the
Book-Entry Note or Book-Entry Notes represented by such Global Security for all
purposes under the Indenture.
REDEMPTION AT THE OPTION OF THE COMPANY
Unless otherwise specified in an applicable Pricing Supplement, the Notes
will not be subject to any optional or mandatory sinking fund. If provided in an
applicable Pricing Supplement, the Notes may be subject to redemption, in whole
or in part, prior to their Stated Maturity at the option of the Company or
through operation of a mandatory or optional sinking fund or analogous
provisions at a price or prices (including premiums, if any) determined as set
forth in a Pricing Supplement, together with interest thereon payable to the
date of redemption, on notice given no more than 60 nor less than 30 days prior
to the date of redemption. If the Notes are to be redeemable, the Notes will be
subject to redemption by the Company on and after the redemption date, if any,
fixed at the time of sale and set forth in the applicable Pricing Supplement. If
no redemption date is indicated in the applicable Pricing Supplement with
respect to a Note, such Note will not be redeemable prior to Stated Maturity.
REPAYMENT AT THE OPTION OF THE HOLDER
If provided in an applicable Pricing Supplement, Notes will be subject to
repayment at the option of the Holder thereof in accordance with the terms of
such Notes on their respective optional repayment dates, if any, as agreed upon
by the Company and the purchasers thereof at the time of sale (each, an
'Optional Repayment Date'). If no Optional Repayment Date is indicated with
respect to a Note, such Note will not be repayable at the option of the Holder
thereof prior to its Stated Maturity.
The Company may at any time purchase Notes at any price or prices in the
open market or otherwise. Notes so purchased by the Company may, at the
discretion of the Company, be held, resold or surrendered to the Trustee for
cancellation.
INTEREST AND INTEREST RATES
General
Unless otherwise specified in an applicable Pricing Supplement, each Note
will bear interest from the date of original issue at the rate per annum or, in
the case of a Floating Rate Note, pursuant to the interest rate formula, stated
therein and in the applicable Pricing Supplement until the principal thereof is
paid or made available for payment. Interest will be payable in arrears on each
date specified in the applicable Pricing Supplement and in a Note on which an
installment of interest is due and payable (an 'Interest Payment Date')
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and at Maturity. Interest will be payable generally to the person in whose name
a Note (or any Predecessor Security) is registered at the close of business on
the Regular Record Date next preceding the related Interest Payment Date;
provided, however, that interest payable at Maturity will be payable to the
person to whom principal shall be payable. Each interest payment shall be the
amount of interest accrued from and including the later of the date of original
issue or the most recent Interest Payment Date (in respect of which interest has
been paid or duly provided for with respect to such Note) to but excluding the
next succeeding Interest Payment Date (an 'Interest Accrual Period'). Unless
otherwise specified in the applicable Pricing Supplement, the first payment of
interest on any Note originally issued between a Regular Record Date and the
related Interest Payment Date will be made on the Interest Payment Date
immediately following the next succeeding Regular Record Date to the Holder on
such next succeeding Regular Record Date. Interest rates, interest rate formulae
and other terms of the Notes are subject to change by the Company from time to
time but no such change will affect any Notes already issued or as to which
offers to purchase have been accepted by the Company.
Fixed Rate Notes
Unless otherwise specified in an applicable Pricing Supplement, the
Interest Payment Dates with respect to any Fixed Rate Note will be June 1 and
December 1 of each year, and the Regular Record Dates in respect of such
Interest Payment Dates will be the immediately preceding May 15 and November 15
(whether or not a Business Day), respectively. If any Interest Payment Date or
Maturity of a Fixed Rate Note falls on a day that is not a Business Day with
respect to such Fixed Rate Note, the payment due on such Interest Payment Date
or at Maturity will be made on the following day that is a Business Day with
respect to such Fixed Rate Note as if it were made on the date such payment was
due and no interest shall accrue on the amount so payable for the period from
and after such Interest Payment Date or Maturity, as the case may be. Unless
otherwise specified in the applicable Pricing Supplement, interest on each Fixed
Rate Note will be computed on the basis of a 360-day year of twelve 30-day
months.
Floating Rate Notes
Unless otherwise specified in an applicable Pricing Supplement, Floating
Rate Notes will be issued as described below. Interest on Floating Rate Notes
will be determined by reference to a 'Base Rate,' which may be one or more of
(a) the Commercial Paper Rate (as defined below), in which case such Note will
be a 'Commercial Paper Rate Note;' (b) the Federal Funds Rate (as defined
below), in which case such Note will be a 'Federal Funds Rate Note;' (c) LIBOR
(as defined below), in which case such Note will be a 'LIBOR Note;' (d) the
Prime Rate (as defined below) in which case such Note will be a 'Prime Rate
Note;' (e) the Treasury Rate (as defined below), in which case such Note will be
a 'Treasury Rate Note;' or (f) such other interest rate formula as may be set
forth in the applicable Pricing Supplement and Floating Rate Note. In addition,
a Floating Rate Note may bear interest at the lowest of two or more Base Rates
determined in the same manner as the Base Rates are determined for the types of
Floating Rate Notes described above (except the interest rate for such Floating
Rate Notes will not be determined with reference to the Treasury Rate). Each
Floating Rate Note will specify the Base Rate or Rates applicable thereto.
The interest rate on each Floating Rate Note will be calculated by
reference to the specified Base Rate or the lowest of two or more specified Base
Rates, in either case plus or minus the applicable Spread, if any, and/or
multiplied by the applicable Spread Multiplier, if any. The 'Spread' is the
number of basis points to be added to or subtracted from the related Base Rate
or Rates applicable to such Floating Rate Note. The 'Spread Multiplier' is the
percentage of the related Base Rate or Rates applicable to such Floating Rate
Note by which said Base Rate or Rates are to be multiplied to determine the
applicable interest rate on such Floating Rate Note. The 'Index Maturity' is the
period to maturity of the instrument or obligation with respect to which the
related Base Rate or Rates are calculated. Each Floating Rate Note will specify
the Index Maturity and the Spread, if any, and/or Spread Multiplier, if any,
applicable thereto.
Each Floating Rate Note and the applicable Pricing Supplement will specify
whether the rate of interest on such Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semiannually, annually or otherwise (each, an
'Interest Reset Period') and the date on which such interest rate will be reset
(each, an 'Interest Reset Date'). Unless otherwise specified in a Floating Rate
Note and the applicable Pricing Supplement, the Interest Reset Date will be, in
the case of a Floating Rate Note which resets (a) daily, each Business Day; (b)
weekly, on
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Wednesday of each week (with the exception of weekly reset Floating Rate Notes
as to which the Treasury Rate is an applicable Base Rate, which will reset
Tuesday of each week, except as described below); (c) monthly, the third
Wednesday of each month; (d) quarterly, the third Wednesday of each March, June,
September and December of each year; (e) semiannually, the third Wednesday of
each of the two months specified in such Pricing Supplement; and (f) annually,
the third Wednesday of the month specified in such Pricing Supplement. If any
Interest Reset Date for any Floating Rate Note would otherwise be a day that is
not a Business Day, such Interest Reset Date will be postponed to the next
succeeding day that is a Business Day, except that in the case of a LIBOR Note
(or a Floating Rate Note for which LIBOR is an applicable Base Rate), if such
Business Day is in the next succeeding calendar month, such Interest Reset Date
shall be the last Business Day in the preceding month.
The interest rate applicable to each Interest Reset Period commencing on
the Interest Reset Date or Dates with respect to such Interest Reset Period will
be the rate determined with respect to the applicable 'Interest Determination
Date.' Unless otherwise specified in an applicable Pricing Supplement, the
Interest Determination Date with respect to the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day preceding
each Interest Reset Date for the related Note. Unless otherwise specified in an
applicable Pricing Supplement, the Interest Determination Date with respect to
LIBOR will be the second London Business Day preceding each Interest Reset Date.
With respect to the Treasury Rate, unless otherwise specified in an applicable
Pricing Supplement, the Interest Determination Date will be the day in the week
in which the Interest Reset Date falls on which day Treasury Bills are normally
auctioned (Treasury Bills are normally sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is normally held
on the following Tuesday, except that such auction may be held on the preceding
Friday); provided, however, that if, as a result of a legal holiday, an auction
is held on the Friday of the week preceding the Interest Reset Date, the related
Interest Determination Date shall be such preceding Friday; and provided,
further, that if an auction shall fall on any Interest Reset Date, then the
related Interest Reset Date shall instead be the first Business Day immediately
following such auction. Unless otherwise specified in the applicable Pricing
Supplement, the Interest Determination Date pertaining to a Floating Rate Note
the interest rate of which is determined with reference to two or more Base
Rates will be the first Business Day which is at least two Business Days prior
to such Interest Reset Date for such a Floating Rate Note on which each Base
Rate shall be determinable. Each Base Rate shall be determined and compared on
such date, and the applicable interest rate shall take effect on the related
Interest Reset Date.
Any Floating Rate Note may also specify either or both a maximum limit and
a minimum limit on the rate at which interest may accrue during any Interest
Accrual Period. In addition to any maximum interest rate that may be applicable
to any Floating Rate Note pursuant to the preceding sentence, the interest rate
on Floating Rate Notes will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
Except as provided below or in the applicable Pricing Supplement, interest
will be payable, in the case of a Floating Rate Note which resets (a) daily,
each Business Day; (b) weekly, on Wednesday of each week (with the exception of
weekly reset Floating Rate Notes as to which the Treasury Rate is an applicable
Base Rate, which will reset on Tuesday of each week, except as described below);
(c) monthly, on the third Wednesday of each month; (d) quarterly, on the third
Wednesday of March, June, September and December of each year; (e) semiannually,
on the third Wednesday of the two months of each year specified in the
applicable Pricing Supplement; and (f) annually, on the third Wednesday of the
month specified in the applicable Pricing Supplement (each, an 'Interest Payment
Date'); and, in each case, at Maturity. If any Interest Payment Date for a
Floating Rate Note falls on a day that is not a Business Day with respect to
such Floating Rate Note, such Interest Payment Date will be the following day
that is a Business Day with respect to such Floating Rate Note, except that, in
the case of a LIBOR Note (or a Floating Rate Note for which LIBOR is an
applicable Base Rate), if such Business Day is in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding day that is
a Business Day with respect to such Floating Rate Note. If the Maturity of a
Floating Rate Note falls on a day that is not a Business Day with respect to
such Floating Rate Note, the payment of principal, premium, if any, and interest
will be made on the next succeeding Business Day with respect to such Floating
Rate Note, and no interest on such payment shall accrue for the period from and
after Maturity. Unless otherwise specified in a Floating Rate Note and the
applicable Pricing Supplement, the Regular Record Date or
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Dates for interest payable on such Floating Rate Note will be the fifteenth day
(whether or not a Business Day) immediately preceding the related Interest
Payment Date or Dates.
The interest rate in effect with respect to a Floating Rate Note on each
day that is not an Interest Reset Date will be the interest rate determined as
of the Interest Determination Date pertaining to the immediately preceding
Interest Reset Date and the interest rate in effect on any day that is an
Interest Reset Date will be the interest rate determined as of the Interest
Determination Date pertaining to such Interest Reset Date, subject in either
case to applicable provisions of law and any maximum or minimum interest rate
limitation referred to in such Floating Rate Note; provided, however, that the
interest rate in effect with respect to a Floating Rate Note for the period from
the date of original issue to the first Interest Reset Date will be the rate
specified as such in the applicable Pricing Supplement and the related Floating
Rate Note (the 'Initial Interest Rate') and unless otherwise specified in the
applicable Pricing Supplement the interest rate in effect for the ten calendar
days immediately prior to a Maturity will be the interest rate in effect on the
tenth calendar day preceding such Maturity.
Unless otherwise specified in the applicable Pricing Supplement, with
respect to each Floating Rate Note, accrued interest is calculated by
multiplying its face amount by an accrued interest factor. Such accrued interest
factor is computed by adding the interest factor calculated for each day from
the later of the date of issue, or from the last date to which interest has been
paid or duly provided for, to the date for which accrued interest is being
calculated. Unless otherwise specified in the applicable Pricing Supplement, the
interest factor for each such day is computed by dividing the interest rate
applicable to such day by 360, in the case of Commercial Paper Rate Notes,
Federal Funds Rate Notes, LIBOR Notes, or Prime Rate Notes or by the actual
number of days in the year, in the case of Treasury Rate Notes. Unless otherwise
specified in an applicable Pricing Supplement, the interest factor for Notes for
which the interest rate is calculated with reference to two or more Base Rates
will be calculated in each period in the same manner as if only the lowest of
the applicable Base Rates applied.
All percentages resulting from any calculation on Floating Rate Notes will
be rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) will be rounded upward to 9.87655% (or. 0987655)), and
all dollar amounts used in or resulting from such calculation on Floating Rate
Notes will be rounded to the nearest cent (with one-half cent being rounded
upward).
Unless otherwise specified in an applicable Pricing Supplement, the Trustee
will be the 'Calculation Agent'. Upon the request of the holder of any Floating
Rate Note, the Calculation Agent will provide the interest rate then in effect
and, if determined, the interest rate that will become effective as a result of
a determination made for the next succeeding Interest Reset Date with respect to
such Floating Rate Note. Unless otherwise specified in an applicable Pricing
Supplement, the 'Calculation Date,' if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if any such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or Maturity, as the case may be.
The interest rate in effect with respect to a Floating Rate Note from the
date of original issue to the first Interest Reset Date will be the Initial
Interest Rate. The interest rate for each subsequent Interest Reset Date will be
determined by the Calculation Agent as follows:
Commercial Paper Rate. Commercial Paper Rate Notes will bear interest
at the interest rates (calculated with reference to the Commercial Paper
Rate and the Spread and/or Spread Multiplier, if any) specified in such
Commercial Paper Rate Notes and in an applicable Pricing Supplement.
Unless otherwise specified in an applicable Pricing Supplement,
'Commercial Paper Rate' means, with respect to any Interest Determination
Date relating to a Commercial Paper Rate Note or any Interest Determination
Date for a Note for which the Commercial Paper Rate is one of the Base
Rates (a 'Commercial Paper Rate Interest Determination Date'), the Money
Market Yield (as defined below) on such date of the rate for commercial
paper having the Index Maturity specified in the applicable Pricing
Supplement as published by the Board of Governors of the Federal Reserve
System in 'Statistical release H.15(519), Selected Interest Rates' or any
successor publication ('H.15(519)') under the heading 'Commercial
Paper--Nonfinancial' or, if unavailable, under such other heading
representing commercial paper issued by non-financial entities whose bond
rating is 'AA', or the equivalent, from a nationally
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recognized statistical rating organization. In the event that such rate is
not published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Commercial Paper Rate Interest Determination Date, then
the Commercial Paper Rate will be the Money Market Yield on such Commercial
Paper Rate Interest Determination Date of the rate for commercial paper
having the Index Maturity specified in the applicable Pricing Supplement as
published by the Federal Reserve Bank of New York in its daily statistical
release 'Composite 3:30 P.M. Quotations for U.S. Governmental Securities'
or any successor publication ('Composite Quotations') under the heading
'Commercial Paper' (with an Index Maturity of one month or three months
being deemed to be equivalent to an Index Maturity of thirty days or ninety
days, respectively). If such rate is not published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on such Calculation
Date, then the Commercial Paper Rate will be calculated by the Calculation
Agent and will be the Money Market Yield of the arithmetic mean of the
offered rates, as of approximately 11:00 A.M., New York City time, on such
Commercial Paper Rate Interest Determination Date, of three leading dealers
of commercial paper in The City of New York (which may include one or more
of the Agents or their affiliates) selected by the Calculation Agent (after
consultation with the Company) for commercial paper having the specified
Index Maturity placed for a nonfinancial issuer whose bond rating is 'AA,'
or the equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate determined as of such Commercial Paper Interest
Determination Date will be the Commercial Paper Rate in effect on such
Commercial Paper Rate Interest Determination Date.
'Money Market Yield' shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
D X 360
---------------------------------
Money Market Yield = [ 360 - (D X M) ] X 100
where 'D' refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal and 'M' refers
to the actual number of days in the interest period for which interest is
being calculated.
Federal Funds Rate. Federal Funds Rate Notes will bear interest at
the interest rates (calculated with reference to the Federal Funds Rate and
the Spread and/or Spread Multiplier, if any) specified in such Federal
Funds Rate Notes and in an applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement,
'Federal Funds Rate' means, with respect to any Interest Determination Date
relating to a Federal Funds Rate Note or a Floating Rate Note for which the
interest rate is determined with reference to the Federal Funds Rate (a
'Federal Funds Rate Interest Determination Date'), the rate on such date
for United States dollar federal funds as published in H.15(519) under the
heading 'Federal Funds (Effective)' or, if not published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Federal
Funds Rate Interest Determination Date as published in Composite Quotations
under the heading 'Federal Funds/Effective Rate.' If such rate is not
published in either H.15(519) or Composite Quotations by 3:00 P.M., New
York City time, on the related Calculation Date, then the Federal Funds
Rate on such Federal Funds Rate Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the
rates for the last transaction in overnight United States dollar federal
funds arranged by three leading brokers of federal funds transactions in
The City of New York (which may include the Agents or their affiliates)
selected by the Calculation Agent prior to 9:00 A.M., New York City time,
on such Federal Funds Rate Interest Determination Date; provided, however,
that if the brokers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate determined as of such
Federal Funds Rate Interests Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest Determination Date.
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LIBOR. LIBOR Notes will bear interest at the interest rates
(calculated with reference to LIBOR and the Spread and/or Spread
Multiplier, if any) specified in such LIBOR Notes and in an applicable
Pricing Supplement.
Unless otherwise specified in an applicable Pricing Supplement,
'LIBOR' means the rate determined by the Calculation Agent in accordance
with the following provisions:
(i) With respect to an Interest Determination Date relating to a
LIBOR Note or any Floating Rate Note for which LIBOR is an applicable
Base Rate (a 'LIBOR Interest Determination Date'), either, as specified
in the applicable Pricing Supplement: (a) the arithmetic mean of the
offered rates for deposits in U.S. dollars for the period of the Index
Maturity specified in the applicable Pricing Supplement, commencing on
the second London Business Day immediately following such LIBOR Interest
Determination Date, which appear on the Reuters Screen LIBO Page as of
11:00 A.M., London time, on the LIBOR Interest Determination Date, if at
least two such offered rates appear on the Reuters Screen LIBO Page
('LIBOR Reuters'), or (b) the rate for deposits in U.S. dollars having
the Index Maturity designated in the applicable Pricing Supplement,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date, that appears on the Telerate Page
3750 as of 11:00 A.M., London time, on that LIBOR Interest Determination
Date ('LIBOR Telerate'). Unless otherwise indicated in the applicable
Pricing Supplement, 'Reuters Screen LIBO Page' means the display
designated as Page 'LIBO' on the Reuters Monitor Money Rate Service (or
such other page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of major banks).
'Telerate Page 3750' means the display designated as page '3750' on the
Telerate Service (or such other page as may replace the 3750 page on
that service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying London
interbank offered rates for U.S. dollar deposits). If neither LIBOR
Reuters nor LIBOR Telerate is specified in the applicable Pricing
Supplement, LIBOR will be determined as if LIBOR Telerate had been
specified. If fewer than two offered rates appear on the Reuters Screen
LIBO Page, or if no rate appears on the Telerate Page 3750, as
applicable, LIBOR in respect of that LIBOR Interest Determination Date
will be determined as if the parties had specified the rate described in
(ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Reuters Screen LIBO Page, as
described in (i)(a) above, or on which no rate appears on the Telerate
Page 3750, as specified in (i)(b) above, as applicable, LIBOR will be
determined on the basis of the rates at which deposits in U.S. dollars
having the Index Maturity designated in the applicable Pricing
Supplement are offered at approximately 11:00 A.M., London time, on such
LIBOR Interest Determination Date by four major banks ('Reference
Banks') in the London interbank market selected by the Calculation Agent
(after consultation with the Company) to prime banks in the London
interbank market commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date and in a
principal amount of not less than U.S. $1,000,000 that is representative
for a single transaction in such market at such time. The Calculation
Agent will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR for such LIBOR Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR for such LIBOR Interest Determination
Date will be the arithmetic mean of the rates quoted at approximately
11:00 A.M., New York City time, on such LIBOR Interest Determination
Date by three major banks (which may include the Agents or their
affiliates) in The City of New York selected by the Calculation Agent
(after consultation with the Company) for loans in U.S. dollars to
leading European banks having the specified Index Maturity designated in
the applicable Pricing Supplement commencing on the second London
Business Day immediately following such LIBOR Interest Determination
Date and in a principal amount equal to an amount of not less than U.S.
$1,000,000 that is representative for a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined as of such LIBOR Interest Determination Date
will be LIBOR then in effect on such LIBOR Interest Determination Date.
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Prime Rate. Prime Rate Notes will bear interest at the interest rates
(calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any) specified in such Prime Rate Notes and in an applicable
Pricing Supplement.
Unless otherwise specified in the applicable Pricing Statement, 'Prime
Rate' means, with respect to any Interest Determination Date relating to a
Prime Rate Note or a Floating Rate Note for which the interest rate is
determined with reference to the Prime Rate (a 'Prime Rate Interest
Determination Date'), the rate on such date as such rate is published in
H.15(519) under the heading 'Bank Prime Loan.' If such rate is not
published prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME1 Page (as hereinafter defined) as such bank's prime
rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters
Screen USPRIME1 Page for such Prime Rate Interest Determination Date, then
the Prime Rate shall be the arithmetic mean of the prime rates or base
lending rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks (which may
include affiliates of the Agents) in The City of New York selected by the
Calculation Agent. If fewer than four such quotations are so provided, then
the Prime Rate shall be the arithmetic mean of four prime rates quoted on
the basis of the actual number of days in the year divided by a 360-day
year as of the close of business on such Prime Rate Interest Determination
Date as furnished in The City of New York by the major money center banks,
if any, that have provided such quotations and by a reasonable number of
substitute banks or trust companies (which may include affiliates of the
Agents) to obtain four such prime rate quotations, provided such substitute
banks or trust companies are organized and doing business under the laws of
the United States, or any State thereof, each having total equity capital
of at least $500 million and being subject to supervision or examination by
Federal or State authority.
'Reuters Screen USPRIME1 Page' means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the 'USPRIME1' page (or
such other page as may replace the USPRIME1 page on such service) for the
purpose of displaying prime rates or base lending rates of major United
States banks.
Treasury Rate. Treasury Rate Notes will bear interest at the interest
rates (calculated with reference to the Treasury Rate and the Spread and/or
Spread Multiplier, if any) specified in such Treasury Rate Notes and in an
applicable Pricing Supplement.
Unless otherwise specified in an applicable Pricing Supplement,
'Treasury Rate' means, with respect to any Interest Determination Date
relating to a Treasury Rate Note or any Floating Rate Note for which the
interest rate is determined by reference to the Treasury Rate (a 'Treasury
Rate Interest Determination Date'), the rate applicable to the most recent
auction of direct obligations of the United States ('Treasury Bills')
having the Index Maturity specified in the applicable Pricing Supplement,
as such rate is published in H.15(519) under the heading 'Treasury
Bills--auction average (investment)' or, if not published by 3:00 P.M., New
York City time, on the Calculation Date pertaining to such Treasury Rate
Interest Determination Date, the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the specified Index Maturity are not reported as
provided by 3:00 P.M., New York City time, on such Calculation Date, or if
no such auction is held in a particular week, then the Treasury Rate shall
be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 days or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 P.M., New York
City time on such Treasury Rate Interest Determination Date, of three
leading primary United States government securities dealers (which may
include one or more of the Agents or their affiliates) selected by the
Calculation Agent (after consultation with the Company), for the issue of
Treasury Bills with a remaining maturity closest to the specified Index
Maturity; provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Treasury Rate determined as of such Treasury Rate Interest Determination
Date will be the Treasury Rate in effect on such Treasury Rate Interest
Determination Date.
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OTHER PROVISIONS; ADDENDA
Any provisions with respect to the determination of a Base Rate, the
specification of a Base Rate, calculation of the interest rate applicable to a
Floating Rate Note, its Interest Payment Dates or any other matter relating
thereto may be modified by the terms as specified under 'Other Provisions' on
the face thereof or in an Addendum relating thereto, if so specified on the face
thereof and described in the applicable Pricing Supplement.
DISCOUNT NOTES
The Company may offer Notes ('Discount Notes') from time to time that have
an Issue Price (as specified in the applicable Pricing Supplement) that is less
than 100% of the principal amount thereof (i.e. par) by more than a percentage
equal to the product of 0.25% and the number of full years to the Stated
Maturity. Discount Notes may not bear any interest currently or may bear
interest at a rate that is below market rates at the time of issuance. The
difference between the Issue Price of a Discount Note and par is referred to
herein as the 'Discount.' In the event of redemption, repayment or acceleration
of maturity of a Discount Note, the amount payable to the Holder of such
Discount Note will be equal to the sum of (i) the Issue Price (increased by any
accruals of Discount) and, in the event of any redemption of such Discount Note
(if applicable), multiplied by the Redemption Percentage (as defined in the
Pricing Supplement) (as adjusted by the Annual Redemption Percentage Reduction
(as defined in the Pricing Supplement, if applicable) and (ii) any unpaid
interest accrued thereon to the date of such redemption, repayment or
acceleration of maturity, as the case may be.
Unless otherwise specified in the applicable Pricing Supplement, for
purposes of determining the amount of Discount that has accrued as of any date
on which a redemption, repayment or acceleration of maturity occurs for a
Discount Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as hereinafter
defined), corresponds to the shortest period between Interest Payment Dates for
the applicable Discount Note (with ratable accruals within a compounding
period), a coupon rate equal to the initial coupon rate applicable to such
Discount Note and an assumption that the maturity of such Discount Note will not
be accelerated. If the period from the date of issue to the initial Interest
Payment Date for a Discount Note (the 'Initial Period') is shorter than the
compounding period for such Discount Note, a proportionate amount of the yield
for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period with the short period being
treated as provided in the preceding sentence. The accrual of the applicable
Discount may differ from the accrual of original issue discount for purposes of
the Internal Revenue Code of 1986, as amended (the 'Code'), certain Discount
Notes may not be treated as having original issue discount within the meaning of
the Code, and Notes other than Discount Notes may be treated as issued with
original issue discount for federal income tax purposes. In the event Notes are
issued at such a discount or with such terms so as to cause original issue
discount rules under federal tax laws to apply, the terms of such Notes and
additional disclosure regarding the federal income tax treatment of such Notes
as well as certain other considerations will be provided in the applicable
Pricing Supplement relating thereto.
BOOK-ENTRY NOTES; GLOBAL SECURITIES
Upon issuance, all Book-Entry Notes having the same original issue date,
Stated Maturity and otherwise having identical terms and provisions will be
represented by a single global security (each, a 'Global Security'). Each Global
Security representing Book-Entry Notes will be deposited with, or on behalf of,
the Depositary. Except as set forth below, a Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any nominee to a successor of the Depositary
or a nominee of such successor.
Upon the issuance by the Company of Book-Entry Notes represented by a
Global Security, the Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Book-Entry Notes
represented by such Global Security to the accounts of participants. The
accounts to be credited shall be designated by the applicable Agent or the
underwriter of such Book-Entry Notes, as the case may be. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that hold interests through
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participants. Ownership of beneficial interests in Book-Entry Notes represented
by a Global Security will be shown on, and the transfer of that ownership will
be effected only through, records maintained by the Depositary (with respect to
interest of participants in the Depositary), or by participants in the
Depositary or persons that may hold interests through such participants (with
respect to persons other than participants in the Depositary). The laws of some
states may require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and such laws may impair the
ability to transfer beneficial interest in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of the Global Security, the Depositary or its nominee, as the
case may be, will be considered the sole owner or Holder of the Book-Entry Notes
represented by such Global Security for all purposes under the Indenture. Except
as provided below, owners of beneficial interests in Book-Entry Notes
represented by a Global Security will not be entitled to have Book-Entry Notes
represented by such Global Security registered in their names, will not receive
or be entitled to receive or be entitled to receive physical delivery of
Book-Entry Notes in definitive form ('Certificated Notes') and will not be
considered the owners or Holders thereof under the Indenture.
Unless otherwise specified in the applicable Pricing Supplement, each
Global Security representing Book-Entry Notes will be exchanged for Certificated
Notes of like tenor and terms and of differing authorized denominations in a
like aggregate principal amount, only if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for the Global
Securities or the Company becomes aware that the Depositary has ceased to be a
clearing agency registered under the Exchange Act and, in any such case, the
Company shall not have appointed a successor to the Depositary within 90 days
after the Company receives such notice or becomes aware of such ineligibility or
(ii) the Company, in its sole discretion, determines that the Global Securities
shall be exchanged for Certificated Notes. Upon any such exchange, the
Certificated Notes shall be registered in the names of the Beneficial Owners (as
defined below) of the Global Security or Securities representing Book-Entry
Notes, which names shall be provided by the Depositary's relevant Participants
(as identified by the Depositary) to the Trustee.
The Depository Trust Company, New York, New York ('DTC') will be the
initial Depositary with respect to the Book-Entry Notes. The following is based
on information furnished by DTC:
DTC will act as securities depository for the Book-Entry Notes. The
Book-Entry Notes will be issued as fully registered securities registered
in the name of Cede & Co. (DTC's partnership nominee). One fully registered
Global Security will be issued for each issue of Book-Entry Notes having
the same terms and provisions, each in the aggregate principal amount of
such issue, and will be deposited with DTC. If, however, the aggregate
principal amount of any issue exceeds $200,000,000, one Global Security
will be issued with respect to each $200,000,000 of principal amount and an
additional Global Security will be issued with respect to any remaining
principal amount of such issue.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a 'banking organization' within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a 'clearing
corporation' within the meaning of the New York Uniform Commercial Code,
and a 'clearing agency' registered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
('Participants') deposit with DTC. DTC also facilitates the settlement
among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need of physical
movement of securities certificates. Direct Participants of DTC ('Direct
Participants') include securities brokers and dealers (including the
Agents), banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its Direct Participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and
the National Association of Securities Dealers, Inc. Access to DTC's system
is also available to others such as securities brokers and dealers, banks
and trust companies that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly ('Indirect
Participants'). The rules applicable to DTC and its Participants are on
file with the Securities and Exchange Commission.
Purchases of Book-Entry Notes under DTC's system must be made by or
through Direct Participants, which will receive a credit for such
Book-Entry Notes on DTC's records. The ownership interest of each
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actual purchaser of each Book-Entry Note represented by a Global Security
('Beneficial Owner') is in turn to be recorded on the records of Direct
Participants and Indirect Participants. Beneficial Owners will not receive
written confirmation from DTC of their purchase, but Beneficial Owners are
expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the
Direct Participants or Indirect Participants through which such Beneficial
Owner entered into the transaction. Transfer of ownership interests in a
Global Security representing Book-Entry Notes are to be accomplished by
entries made on the books of Participants acting on behalf of Beneficial
Owners. Beneficial Owners of a Global Security representing Book-Entry
Notes will not receive Certificated Notes representing their ownership
interests therein, except in the limited circumstances described above.
To facilitate subsequent transfers, all Global Securities representing
Book-Entry Notes which are deposited with, or on behalf of, DTC are
registered in the name of DTC's nominee, Cede & Co. The deposit of Global
Securities with, or on behalf of, DTC and their registration in the name of
Cede & Co. effect no change in beneficial ownership. DTC has no knowledge
of the actual Beneficial Owners of the Global Securities representing the
Book-Entry Notes; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Book-Entry Notes are credited, which
may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the
Global Securities representing the Book-Entry Notes. Under its usual
procedures, DTC mails an Omnibus Proxy to the Company as soon as possible
after the applicable record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose account
the Book-Entry Notes are credited on the applicable record date (identified
in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and/or interest, if any, payments on the
Global Securities representing the Book-Entry Notes will be made by the
Company through the Trustee in immediately available funds to DTC as the
registered owner of the Global Securities. DTC's practice is to credit
Direct Participants' accounts on the applicable payment date in accordance
with their respective holdings shown on DTC's records unless DTC has reason
to believe that it will not receive payment on such date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in 'street name', and
will be the responsibility of such Participant and not of DTC, the Trustee
or the Company, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment of principal, premium, if any,
and/or interest, if any, to DTC is the responsibility of the Company and
the Trustee, disbursement of such payments to Direct Participants shall be
the responsibility of DTC, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct Participants and
Indirect Participants. None of the Company, the Trustee, the Paying Agent
or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
If applicable, redemption notices shall be sent to Cede & Co. If less
than all of the Book-Entry Notes are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in
such issue to be redeemed.
A Beneficial Owner shall give notice of any option to elect to have
its Book-Entry Notes repaid by the Company, through its Participant, to the
Trustee, and shall effect delivery of such Book-Entry Notes by causing the
Direct Participant to transfer the Participant's interest in the Global
Security or Securities representing such Book-Entry Notes, on DTC's
records, to the Trustee. The requirement for physical delivery of
Book-Entry Notes in connection with a demand for repayment will be deemed
satisfied when the
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ownership rights in the Global Security or Securities representing such
Book-Entry Notes are transferred by Direct Participants on DTC's records.
The Depositary may discontinue providing its services as securities
depository with respect to the Book-Entry Notes at any time upon reasonable
notice to the Company or the Trustee. Under such circumstances, in the
event that a successor Depository is not obtained, Certificated Notes are
required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through a Depositary. In that event, Certificated Notes will be
printed and delivered.
The information in this section concerning DTC and DTC's system has been
obtained from sources that the Company believes to be reliable, but the Company
takes no responsibility for the accuracy thereof.
LIMITATIONS ON LIENS
Subject to certain exceptions, the Company will not, and will not permit
any Subsidiary to, create, assume or suffer to exist, otherwise than in favor of
the Company or a Subsidiary, any mortgage, pledge, lien, encumbrance, or
security interest (collectively, 'Liens') upon any of its properties or assets
or upon any income or profits therefrom unless the Notes shall be equally and
ratably secured. This prohibition will not apply to: (a) Liens existing as of
the date of the Indenture; (b) any purchase money mortgage or Lien created to
secure all or part of the purchase price of any property (or to secure a loan
made to the Company or any Subsidiary to enable it to acquire such property),
provided that such Lien shall extend only to the property so acquired,
improvements thereon, replacements thereof and the income or profits therefrom;
(c) Liens on any property at the time of the acquisition thereof, whether or not
assumed by the Company or a Subsidiary; provided that such Lien shall extend
only to the property so acquired, improvements thereon, replacements thereof and
income or profits therefrom; (d) Liens on property or any contract for the sale
of any product or service or any rights thereunder or any proceeds therefrom,
acquired or constructed by the Company or a Subsidiary and created within one
year after the later of (1) the completion of such acquisition or construction
or (2) the commencement of operation of the project, provided that such Lien
shall extend only to the property so acquired or constructed, improvements
thereon, replacements thereof and income or profits therefrom; (e) Liens of
Subsidiaries outstanding at the time they become Subsidiaries; (f) Liens created
or assumed by the Company or a Subsidiary on coal, geothermal, oil, natural gas,
inert gas, other hydrocarbon or mineral properties owned or leased by the
Company or a Subsidiary to secure loans to the Company or a Subsidiary, for the
purpose of developing such properties; (g) Liens on any investment (as defined
in the Indenture) of the Company or a Subsidiary in any Person other than a
Subsidiary or on any security representing any investment of the Company or a
Subsidiary; (h) any Lien not otherwise permitted by the Indenture, provided that
after giving effect to such Liens the sum of (1) all indebtedness of the Company
and its Subsidiaries secured by Liens not otherwise permitted by the Indenture
and (2) all Attributable Debt of the Company and its Subsidiaries (to the extent
not included in (1) above) does not exceed 10% of Consolidated Capitalization;
(i) any refunding or extension of maturity, in whole or in part, of any
obligation or indebtedness secured by certain permitted Liens, provided that the
principal amount of the obligation or indebtedness secured by such refunding or
extension shall not exceed the principal amount of the obligation or
indebtedness then outstanding and shall be limited in lien to the same or
substituted property and after-acquired property that secured the refunded or
extended obligation or indebtedness; (j) Liens upon any office equipment, data
processing equipment or any motor vehicles, tractors or trailers; (k) Liens of
or upon or in current assets of the Company or a Subsidiary created or assumed
to secure indebtedness incurred in the ordinary course of business; (l) any Lien
which is payable, both with respect to principal and interest, solely out of the
proceeds of natural gas, oil, coal, geothermal resources, inert gas,
hydrocarbons or minerals to be produced from the property subject thereto and to
be sold or delivered by the Company or a Subsidiary; (m) Liens to secure
indebtedness incurred to finance advances made by the Company or any Subsidiary
to any third party for the purpose of financing oil, natural gas, hydrocarbon,
inert gas or other mineral exploration or development, provided that such Liens
shall extend only to the receivables of the Company or such Subsidiary in
respect of such advances; and (n) any rights reserved in others to take or
reserve any part of the natural gas, oil, coal, geothermal resources, inert gas,
hydrocarbons or minerals produced at any time on any property of the Company or
a Subsidiary. Also excepted from the general prohibition are various other liens
including, but not limited to: mechanics' or
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materialmen's liens, certain governmental liens, certain leases, certain
judgment liens, and certain liens arising in connection with leases, easements
and rights-of-way for pipeline or distribution plant purposes.
CERTAIN DEFINITIONS
Certain terms used in the Indenture are defined and are used in this
Prospectus as follows:
'Attributable Debt' means, as of the date of determination, the
present value of net rent for the remaining term of a capital lease,
determined in accordance with generally accepted accounting principles
('GAAP'), which is part of a Sale and Leaseback Transaction (as defined),
including any periods for which the lessee has the right to renew or extend
the lease. For purposes of the foregoing, 'net rent' means the sum of
capitalized rental payments required to be paid by the lessee, other than
amounts required to be paid by the lessee for maintenance, repairs,
insurance, taxes, assessments, energy, fuel, utilities and similar charges.
In the case of a capital 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 to be required to be paid under
such lease subsequent to the first date upon which it may be so terminated.
'Consolidated Capitalization' means, without duplication, the sum of
(a) the principal amount of Consolidated Funded Debt of the Company and its
Subsidiaries at the time outstanding, (b) the total capital represented by
the capital stock of the Company and its Subsidiaries at the time
outstanding based, in the case of stock having par value, upon its par
value, and in the case of stock having no par value, upon the value stated
on the books of the Company, (c) the total amount of (or less the amount of
any deficit in) retained earnings and paid-in capital of the Company and
its Subsidiaries, (d) reserves for deferred federal and state income taxes
arising from timing differences, and (e) Attributable Debt, all as shown on
a consolidated balance sheet of the Company and its Subsidiaries prepared
in accordance with GAAP; provided that in determining the consolidated
retained earnings and paid-in capital of the Company and its Subsidiaries
no effect shall be given to any unrealized write-up or write-down in the
value of assets or any amortization thereof, except for accumulated
provisions for depreciation, depletion, amortization and property
retirement which shall have been created by charges made by the Company or
any of its Subsidiaries on its books.
'Consolidated Funded Debt' means the Funded Debt of the Company and
its Subsidiaries, consolidated in accordance with GAAP.
'Funded Debt' means all Indebtedness that will mature, pursuant to a
mandatory sinking fund or prepayment provision or otherwise, and all
installments of Indebtedness that will fall due, more than one year from
the date of determination. In calculating the maturity of any Indebtedness,
there shall be included the term of any unexercised right of the debtor to
renew or extend such Indebtedness existing at the time of determination.
'Indebtedness' means all items of indebtedness for borrowed money
(other than unamortized debt discount and premium) which would be included
in determining total liabilities as shown on the liability side of a
balance sheet prepared in accordance with GAAP as of the date as of which
Indebtedness is to be determined, and shall include indebtedness for
borrowed money (other than unamortized debt discount and premium) with
respect to which the Company or any Subsidiary customarily pays interest
secured by any mortgage, pledge or other lien or encumbrance of or upon, or
any security interest in, any properties or assets owned by the Company or
any Subsidiary, whether or not the Indebtedness secured thereby shall have
been assumed, and shall also include guarantees of Indebtedness of others;
provided that in determining Indebtedness of the Company or any Subsidiary
there shall be included the aggregate liquidation preference of all
outstanding securities of any Subsidiary senior to its Common Stock that
are not owned by the Company or a Subsidiary; and provided, further, that
Indebtedness of any Person shall not include the following:
(a) any indebtedness evidence of which is held in treasury (but the
subsequent resale of such indebtedness shall be deemed to constitute the
creation thereof); or
(b) any particular indebtedness if, upon or prior to the maturity
thereof, there shall have been deposited with a depository (or set aside
and segregated, if permitted by the instrument creating such
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indebtedness), in trust, money (or evidence of such indebtedness as
permitted by the instrument creating such indebtedness) in the necessary
amount to pay, redeem or satisfy such indebtedness; or
(c) any indebtedness incurred to finance oil, natural gas,
hydrocarbon, inert gas or other mineral exploration or development to
the extent that the issuer thereof has outstanding advances to finance
oil, natural gas, hydrocarbon, inert gas or other mineral exploration or
development, but only to the extent such advances are not in default; or
(d) any indebtedness incurred without recourse to the Company or
any Subsidiary; or
(e) any indebtedness incurred to finance advance payments for gas
(pursuant to take-or-pay provisions or otherwise), but only to the
extent that such advance payments are pursuant to gas purchase contracts
entered into in the normal course of business; or
(f) any amount (whether or not included in determining total
liabilities as shown on the liability side of a balance sheet prepared
in accordance with GAAP) representing capitalized rent under any lease;
or
(g) any indirect guarantees or other contingent obligations in
respect of indebtedness of other Persons, including agreements,
contingent or otherwise, with such other Persons or with third parties
with respect to, or to permit or assure the payment of, obligations of
such other Persons, including, without limitation, agreements to
purchase or repurchase obligations of such other Persons, to advance or
supply funds to, or to invest in, such other Persons, or to pay for
property, products or services of such other Persons (whether or not
conveyed, delivered or rendered); demand charge contracts, through-put,
take-or-pay, keep-well, make-whole or maintenance of working capital or
similar agreements; or guarantees with respect to rental or similar
periodic payments to be made by such other Persons.
'Sale and Leaseback Transaction' means an arrangement in which the
Company or a Subsidiary sells any of its property which was placed into
service more than 120 days prior to such sale to a Person and leases it
back from that Person within 180 days of the sale.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Nothing contained in the Indenture or in any of the Notes shall prevent any
consolidation or merger of the Company with or into any other Person (whether or
not affiliated with the Company), or successive consolidations or mergers in
which the Company or its successor shall be a party, or shall prevent any
conveyance, transfer or lease of the property of the Company as an entirety or
substantially as an entirety, to any other Person (whether or not affiliated
with the Company); provided, however, that:
(a) in case of such a transaction, the entity formed by such
consolidation or into which the Company is merged or the Person which
acquires or leases the properties and assets of the Company substantially
as an entirety shall be a Corporation organized under the laws of the
United States of America, any state thereof or the District of Columbia and
shall expressly assume the due and punctual payment of the principal of,
premium, if any, and interest on and any Additional Amounts (as defined in
the Indenture) with respect to all the Notes and the performance of every
other covenant of the Indenture;
(b) immediately after giving effect to such transaction, no event
which, after notice or lapse of time, would become an Event of Default,
shall have occurred and be continuing; and
(c) each of the Company and the successor Person shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such transaction complies with the above paragraphs (a) and
(b) and that all conditions precedent relating to such transaction have
been complied with.
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EVENTS OF DEFAULT
The following are Events of Defaults under the Indenture with respect to
any Notes: (a) failure to pay the principal of (or premium, if any, on) any Note
when due; (b) failure to make any mandatory sinking fund payment on any Note
when due or failure to pay any interest installment on or any Additional Amounts
with respect to any Note when due, in each case, continued for 30 days; (c)
failure to perform any other covenant of the Company, continued for 90 days
after written notice as provided in the Indenture; (d) the occurrence of an
event of default in other indebtedness of the Company (including Securities
other than the Notes) resulting in indebtedness in excess of $10,000,000
principal amount being due and payable prior to maturity and such acceleration
shall not have been rescinded or annulled or such indebtedness shall not have
been discharged after written notice as provided in the Indenture; and (e)
certain events of bankruptcy, insolvency or reorganization.
If an Event of Default with respect to Notes at the time outstanding shall
occur and be continuing, then and in every such case (unless the principal of
all the Notes shall have already become due and payable) the Trustee or the
Holders of at least 33 1/3% in principal amount of the outstanding Notes may
declare to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), the entire principal amount of all the
outstanding Notes. At any time after such declaration of acceleration has been
made, but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in principal amount of the
outstanding Notes, by written notice to the Company and the Trustee, may, in
certain circumstances, rescind and annul such declaration.
No Holder of any Notes shall have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
previously shall have given to the Trustee written notice of a default and
unless also the Holders of at least 25% of the principal amount of outstanding
Notes shall have made written request upon the Trustee, and have offered
reasonable indemnity, to institute such proceeding as the Trustee may request,
and the Trustee shall not have received direction inconsistent with such request
in writing by the Holders of a majority in principal amount of outstanding Notes
and shall have neglected or refused to institute such proceeding within 60 days.
However, the rights of any Holder of any Notes to enforce the payment of
principal, premium, if any, and interest due on and any Additional Amount with
respect to such Notes on or after the dates expressed in such Notes may not be
impaired or affected.
WAIVER, MODIFICATION AND AMENDMENT
The Holders of a majority in principal amount of the outstanding Notes may
waive certain past defaults, except a default in the payment of the principal of
(or premium, if any) or interest on any Note or in respect of any covenant or
provision in the Indenture which under the terms of the Indenture cannot be
modified without the consent of all Holders of outstanding Notes. The Holders of
a majority in aggregate principal amount of outstanding Notes may waive the
Company's compliance with certain restrictive provisions.
Modification and amendment of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of majority in aggregate principal
amount of the outstanding Notes provided that no such modification or amendment
may, without the consent of the Holder of each Note affected thereby, (a) change
the Stated Maturity of the principal of, or any installment of principal of, or
interest on or any Additional Amount with respect to, any Note; (b) reduce the
principal amount of, or the rate of interest, if any, on, any Additional Amounts
with respect to, or any premium payable upon the redemption of any Note; (c)
change the Place of Payment or change the currency of payment of principal,
premium, if any, interest on, or any Additional Amounts with respect to any
Note; (d) impair the right to institute suit for the enforcement of any payment
on or with respect to any Note; (e) reduce the percentages of Holders of
outstanding Notes specified in this or the preceding paragraph; or (f) effect
certain other modifications or amendments described in the Indenture.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that the Company may elect either (A) to defease and
be discharged from any and all obligations with respect to the Notes
('defeasance') or (B) to be released from its obligations with respect to such
Notes described above under 'Limitations on Liens' and 'Consolidation, Merger
and Sale of Assets' ('covenant defeasance'), upon the irrevocable deposit with
the Trustee, in trust for such purpose, of money, and/or U.S. Government
Obligations (as defined in the Indenture) which through the payment of principal
and
20
<PAGE>
interest in accordance with their terms will provide money, in an amount
sufficient to pay the principal of, and premium, if any, and interest on and any
Additional Amounts with respect to such Notes, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due date therefor. Unless otherwise
specified in the applicable Pricing Supplement, defeasance and covenant
defeasance are each conditioned upon the Company's delivery to the Trustee of an
Opinion of Counsel to the effect that the Holders of the Notes will have no
federal income tax consequences as a result of such deposit. The applicable
Pricing Supplement may further describe the provisions, if any, permitting such
defeasance or covenant defeasance with respect to the related Notes (including
any modifications to the provisions described above) and the effect of such
defeasance or covenant defeasance under federal tax law.
CONCERNING THE TRUSTEE
First Security Bank, N.A. is the Trustee under the Indenture. The Indenture
contains certain limitations on the rights of the Trustee, should it become a
creditor of the Company, to obtain payment of claims in certain cases or to
realize on certain property received in respect of any such claim as security or
otherwise. The Trustee will be permitted to engage in other transactions with
the Company; however, if it acquires a conflicting interest it must eliminate
such conflict or resign or otherwise comply with the Trust Indenture Act of
1939, as amended. The Indenture also provides that the Company will indemnify
the Trustee against loss, liability or expense incurred without negligence or
bad faith on the part of the Trustee arising out of or in connection with the
trust under the Indenture.
21
<PAGE>
PLAN OF DISTRIBUTION
The Notes are being offered on a continuing basis for sale by the Company
through the Agents, who have agreed to use their reasonable efforts to solicit
offers to purchase the Notes, and the Company may also sell the Notes to an
Agent, as principal, for resale to investors and other purchasers at varying
prices related to prevailing market prices at the time of resale to be
determined by such Agent. The Company also reserves the right to sell Notes
directly on its own behalf or through additional agents, acting either as agent
or principal, on substantially identical terms as those applicable to the
Agents. The Company reserves the right to withdraw, cancel or modify the offer
made hereby without notice and may reject orders, in whole or in part, whether
placed directly with the Company or through one of the Agents. The Agents will
have the right, in their discretion reasonably exercised, to reject in whole or
in part any offer to purchase Notes received by them. The Company will pay the
Agents, in the form of a discount or otherwise, a commission which, depending on
the Stated Maturity of the Note, will range from .125% to .750% of the principal
amount of any Note sold through the Agents.
In addition, the Agents may offer the Notes they have purchased as
principal to other dealers. The Agents may sell Notes to any dealer at a
discount and, unless otherwise specified in the applicable Pricing Supplement,
such discount allowed to any dealer will not be in excess of the discount to be
received by such Agent from the Company. Unless otherwise indicated in the
applicable Pricing Supplement, any Note sold to an Agent as principal will be
purchased by such Agent at a price equal to 100% of the principal amount thereof
less a percentage equal to the commission applicable to any agency sale of a
Note of identical maturity, and may be resold by the Agent to investors and
other purchasers from time to time in one or more transactions, including
negotiated transactions, at varying prices determined at the time of sale or, if
so agreed, at a fixed public offering price. After the initial public offering
of Notes to be resold to investors and other purchasers, the public offering
price (if resold on a fixed public offering price basis), concession and
discount may be changed.
Unless otherwise specified in the applicable Pricing Supplement, payment of
the purchase price of the Notes will be required to be made in immediately
available funds in New York City on the date of settlement.
In connection with the offering of the Notes purchased by one or more
Agents as principal on a fixed price basis, the Agents are permitted to engage
in certain transactions that stabilize the price of the Notes. Such transactions
consist of bids or purchases for the purpose of pegging, fixing or maintaining
the price of the Notes. If the Agents create a short position in the Notes in
connection with the offering, i.e., if they sell Notes in an aggregate principal
amount exceeding that set forth in the applicable Pricing Supplement, the Agents
may reduce that short position by purchasing Notes in the open market.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases.
Neither the Company nor any of the Agents makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the Notes. In addition, neither the
Company nor any of the Agents makes any representation that the Agents will
engage in such transactions or that such transactions, once commenced, will not
be discontinued without notice.
The Notes are a new issue of securities with no established trading market.
Unless otherwise specified in the applicable Pricing Supplement, the Notes will
not be listed on any securities exchange. Each of the Agents may from time to
time purchase and sell Notes in the secondary market, but no Agent is obligated
to do so, and there can be no assurance that there will be a secondary market
for the Notes or liquidity in the secondary market if one develops. From time to
time, each of the Agents may make a market in the Notes.
Each Agent may be deemed to be an 'underwriter' within the meaning of the
Securities Act. The Company has agreed to indemnify each of the Agents against,
or to make contributions relating to, certain civil liabilities, including civil
liabilities under the Securities Act. The Company has agreed to reimburse each
of the Agents for certain expenses.
Each of the Agents has provided and will provide from time to time certain
financial advisory services to the Company and Questar.
22
<PAGE>
LEGAL OPINIONS
Certain legal matters will be passed upon for the Company by Gary G.
Sackett, Vice President and General Counsel of Questar, 180 East 100 South
Street, Salt Lake City, Utah 84111, and by Skadden, Arps, Slate, Meagher & Flom
LLP, 919 Third Avenue, New York, New York 10022. Brown & Wood LLP, 555
California Street, San Francisco, California 94104, will act as counsel for the
underwriters or Agents. In rendering their opinion, Brown & Wood LLP may rely
upon the opinion of Mr. Sackett as to all matters governed by Utah law. As of
June 30, 1998, Mr. Sackett beneficially owned 59,370 shares of Common Stock of
Questar (inclusive of currently exercisable options to purchase 13,375 shares of
Common Stock of Questar).
EXPERTS
The financial statements of Questar Pipeline Company appearing in the
Company's Annual Report (Form 10-K, as amended) for the year ended December 31,
1997 have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such financial statements are incorporated herein by reference in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
23
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT
(INCLUDING THE APPLICABLE PRICING SUPPLEMENT) IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND SUCH PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, COMPANY
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY AGENT. NEITHER THE DELIVERY OF THIS PROSPECTUS
OR ANY PROSPECTUS SUPPLEMENT (INCLUDING THE APPLICABLE PRICING SUPPLEMENT) NOR
ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THEREOF. THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT (INCLUDING THE APPLICABLE
PRICING SUPPLEMENT) SHALL NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN
ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
PAGE
----
Available Information............................. 2
Incorporation of Certain Documents by
Reference....................................... 2
The Company....................................... 3
Use of Proceeds................................... 4
Capitalization.................................... 5
Ratio of Earnings to Fixed Charges................ 5
Description of the Medium-Term Notes.............. 5
Plan of Distribution.............................. 22
Legal Opinions.................................... 23
Experts........................................... 23
$175,000,000
QUESTAR PIPELINE
(an indirect subsidiary of Questar Corporation)
[QUESTAR PIPELINE LOGO]
MEDIUM-TERM NOTES
---------------------------
PROSPECTUS
---------------------------
MERRILL LYNCH & CO.
SALOMON SMITH BARNEY
, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses payable by the Company
in connection with the offering of the Notes registered hereunder. All such fees
and expenses other than the Securities and Exchange Commission Registration Fee
are estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............................... $ 51,625
Printing Expenses................................................................. 27,500
Legal Fees and Expenses........................................................... 160,000
Accounting Fees and Expenses...................................................... 20,000
Blue Sky Fees and Expenses........................................................ 5,000
Trustee's Fees and Expenses....................................................... 2,500
Rating Agency Fees................................................................ 37,000
Miscellaneous..................................................................... 375
--------
Total........................................................................ $304,000
--------
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 16-10a-901 through 16-10a-909 of the Utah
Revised Business Corporation Act, which provides for indemnification of
directors and officers in certain circumstances.
The Company's Bylaws provide that the Company may voluntarily indemnify any
individual made a party to a proceeding because he is or was a director,
officer, employee or agent of the Company against liability incurred in the
proceeding, but only if the Company has authorized the payment in accordance
with the applicable statutory provisions of the Utah Revised Business
Corporation Act (Sections 16-10a-902, 16-10a-904 and 16-10a-907) and a
determination has been made in accordance with the procedures set forth in such
provision that such individual conducted himself in good faith, that he
reasonably believed his conduct, in his official capacity with the Company, was
in its best interests and that his conduct, in all other cases, was at least not
opposed to the Company's best interests, and that he had no reasonable cause to
believe his conduct was unlawful in the case of any criminal proceeding. The
foregoing indemnification in connection with a proceeding by or in the right of
the Company is limited to reasonable expenses incurred in connection with the
proceeding, which expenses may be advanced by the Company. The Company's Bylaws
provide that the Company may not voluntarily indemnify a director, officer,
employee or agent of the Company in connection with a proceeding by or in the
right of the Company in which such individual was adjudged liable to the Company
or in connection with any other proceeding charging improper personal benefit to
him, whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received by
him.
The Company's Bylaws provide further that the Company shall indemnify a
director, officer, employee or agent of the Company who was wholly successful,
on the merits or otherwise, in defense of any proceeding to which he was a party
because he is or was such a director, officer, employee or agent, against
reasonable expenses incurred by him in connection with the proceeding.
The Company's Bylaws further provide that no director of the Company shall
be personally liable to the Company or its stockholders for monetary damages for
any action taken or any failure to take any action, as a director, except
liability for (a) the amount of a financial benefit received by a director to
which he is not entitled; (b) an intentional infliction of harm on the Company
or the shareholders; (c) for any action that would result in liability of the
director under the applicable statutory provision concerning unlawful
distributions; or (d) an intentional violation of criminal law.
Questar Corporation, the Company's parent, maintains an insurance policy on
behalf of the officers and directors of the Company pursuant to which (subject
to the limits and limitations of such policy) the officers and directors are
insured against certain expenses in connection with the defense of actions or
proceedings, and
II-1
<PAGE>
certain liabilities which might be imposed as a result of such actions or
proceedings, to which any of them is made a party by reason of being or having
been a director or officer.
Reference is made to Sections 8 and 9 of the Distribution Agreement, the
term of which is filed as Exhibit 1.01 hereto for the description of the
indemnification and contribution arrangements for this offering.
ITEM 16. EXHIBITS.
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
1.01 -- Form of Distribution Agreement (including the forms of Terms Agreement and Administrative
Procedures).
4.01 -- Indenture, dated as of August 17, 1998, between the Company and First Security Bank, N.A., as
trustee, relating to the Company's Debt Securities.
4.02 -- Form of Fixed Rate Note.
4.03 -- Form of Floating Rate Note.
5.01 -- Opinion of Gary G. Sackett
5.02 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
12.01 -- Statement of Computation of Ratio of Earnings to Fixed Charges.
23.01 -- Consent of Ernst & Young LLP.
23.02 -- Consent of Gary G. Sackett (included in Exhibit 5.01).
23.03 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.02).
24.01 -- Form of Appointment of Power of Attorney (included on signature page to the Registration
Statement).
25.01 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
ITEM 17. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
B. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions of Utah law and the registrant's
bylaws, a summary of which is set forth in Item 15 hereof, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
C. The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
II-2
<PAGE>
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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.
D. 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
dollar value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the 'Calculation of Registration Fee' table in the effective
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (D)(1)(i) and (D)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the 'Exchange Act') that are
incorporated by reference in this 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; and
(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.
II-3
<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 SALT LAKE, STATE OF UTAH, ON THE 17TH DAY OF AUGUST,
1998.
QUESTAR PIPELINE COMPANY
By: /s/ D.N. ROSE
----------------------------------
D.N. Rose
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of D.N. Rose and S.E. Parks his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement (or any other registration statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------------------- -------------------
<S> <C> <C>
/s/ D.N. ROSE President and Chief Executive Officer, August 17, 1998
- ------------------------------------------ Director (Principal Executive Officer)
D.N. Rose
/s/ S.E. PARKS Vice President, Treasurer and August 17, 1998
- ------------------------------------------ Chief Financial Officer
S.E. Parks (Principal Financial Officer)
/s/ G.H. ROBINSON Vice President and Controller August 17, 1998
- ------------------------------------------ (Principal Accounting Officer)
G.H. Robinson
/s/ R.D. CASH Chairman of the Board; Director August 17, 1998
- ------------------------------------------
R.D. Cash
/s/ U. EDWIN GARRISON Director August 17, 1998
- ------------------------------------------
U. Edwin Garrison
/s/ MARILYN S. KITE Director August 17, 1998
- ------------------------------------------
Marilyn S. Kite
/s/ SCOTT S. PARKER Director August 17, 1998
- ------------------------------------------
Scott S. Parker
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------ ----------------------------------------------------------------------------------------------- -----------
<S> <C> <C> <C>
1.01 -- Form of Distribution Agreement (including the forms of Terms Agreement and Administrative
Procedures).
4.01 -- Indenture, dated as of August 17, 1998, between the Company and First Security Bank,
N.A., as trustee, relating to the Company's Debt Securities.
4.02 -- Form of Fixed Rate Note.
4.03 -- Form of Floating Rate Note.
5.01 -- Opinion of Gary G. Sackett, Esq.
5.02 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
12.01 -- Statement of Computation of Ratio of Earnings to Fixed Charges.
23.01 -- Consent of Ernst & Young LLP.
23.02 -- Consent of Gary G. Sackett (included in Exhibit 5.01).
23.03 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.02).
24.01 -- Form of Appointment of Power of Attorney (included on signature page to the Registration
Statement).
25.01 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
<PAGE>
QUESTAR PIPELINE COMPANY
Medium-Term Notes, Series A, Due from
Nine Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
August , 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
SALOMON BROTHERS INC
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Questar Pipeline Company, a Utah corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated ("Merrill Lynch") and Salomon Brothers Inc ("Salomon
Brothers" and together with Merrill Lynch, the "Agents") with respect to the
issue and sale by the Company of its Medium-Term Notes, Series A, due from
nine months to 30 years from date of issue, described herein (the "Notes").
The Notes are to be issued pursuant to an indenture dated as of August 17,
1998, as amended, supplemented or modified from time to time (the
"Indenture"), between the Company and First Security Bank, N.A., as trustee
(the "Trustee").
As of the date hereof, the Company has authorized the issuance and
sale of up to $175,000,000 aggregate principal amount of Notes directly or
through the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be distributed by the
Company or through or to the Agents pursuant to the terms of this Agreement,
all as though the issuance of such Notes were authorized as of the date
hereof.
<PAGE>
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed
to by the Company and the related Agent or the Agents) to one or more Agents
as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333- ) for the
registration of the Notes under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"). Such registration statement has been declared
effective by the Commission and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit)
and the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use
in connection with the offering of the Notes whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell
Notes directly on its own behalf, the Company hereby appoints the Agents,
except as otherwise provided in this Section 1(a), as the exclusive agents for
the purpose of soliciting purchases of the Notes from the Company by others
and agrees that, except as otherwise contemplated herein, whenever the Company
determines to sell Notes directly to one or more of the Agents as principal
for resale to others, it will enter into a Terms Agreement (as hereafter
defined) relating to such sale in accordance with the provisions of Section
3(b) hereof if requested by such Agent. The Company agrees that, except as
otherwise provided in this Section 1(a), during the period the Agents are
acting as the Company's agents hereunder, the Company will not engage any
other party to assist in the placement of the Notes (other than any person or
entity which, by executing a counterpart of this Agreement, becomes an Agent
hereunder). Notwithstanding the foregoing, the Company reserves the right to
(i) appoint additional agents for the purpose of placing Notes in one or more
discrete transactions during the term of this Agreement under the terms of an
agreement substantially identical to this Agreement (provided that the
commission to be paid to such additional agents in connection with the sale of
any Note shall be the applicable commission determined pursuant to Section
3(a) hereof), and (ii) sell Notes to one or more underwriters in one or more
underwritten transactions
2
<PAGE>
so long as such underwriter or underwriters shall execute an agreement
substantially identical to this Agreement relating to such underwritten
transaction or transactions, provided that in each such case no such agreement
will appoint any such agent or underwriter as an agent under this Agreement
except as relates to the related transaction or transactions. The Company
shall give prompt written notice to the Agents of the occurrence of any event
described in clause (i) or (ii) above. As used herein, the term "Agent", in
addition to Merrill Lynch and Salomon Brothers, refers to each person or
entity which, at any particular time, is an agent or underwriter, as the case
may be, for the Company hereunder as evidenced by its execution of a
counterpart of this Agreement.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
receipt of instructions from the Company, the Agents will use their reasonable
efforts to solicit offers to purchase such principal amount of the Notes as
the Company and the Agents shall agree upon from time to time during the term
of this Agreement, it being understood that the Company shall not approve the
solicitation of offers to purchase Notes in excess of the amount which shall
be authorized by the Company from time to time or in excess of the principal
amount of Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or of otherwise monitoring the
availability of Notes for sale under the Registration Statement. Each Agent
will communicate to the Company, orally or in writing, each reasonable offer
to purchase Notes, other than those offers rejected by such Agent. Each Agent
shall have the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection
shall not be deemed a breach of the Agent's agreement contained herein. The
Company shall have the sole right to accept or reject any proposed purchase of
the Notes, in whole or in part and any such rejection shall not be deemed a
breach of the Company's agreement contained herein.
(c) Solicitations as Agents; Purchases as Principals. In soliciting
offers to purchase the Notes on behalf of the Company and in performing its
other obligations hereunder (other than with respect to any purchase by the
Agents as principal, pursuant to a Terms Agreement or otherwise), each Agent
shall act solely as agent for the Company and not as principal. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Notes has been solicited by such
Agent and accepted by the Company. No Agent shall have any liability to the
Company in the event any such purchase is not consummated for any reason. If
the Company shall default on its obligation to deliver Notes to a purchaser
whose offer it has accepted, the Company shall (i) hold the Agent harmless
against any loss, claim or damage arising from or as a result of such default
by the Company and (ii) notwithstanding such default, pay to the Agent any
commission to which it would be entitled in connection with such sale. No
Agent shall have any obligation to purchase Notes from the Company as
principal, but an Agent may agree from time to time to purchase Notes as
principal. Any such purchase of Notes by an Agent as principal shall be made
in accordance with Section 3(b) hereof if requested by such Agent.
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(d) Reliance. The Company and the Agents agree that any Notes the
placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through an Agent as agent or from an Agent as
principal), as of the date of each delivery of Notes (whether through an Agent
as agent or to an Agent as principal) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the Commission any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of each Representation Date will comply, in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the rules and regulations of the
Commission promulgated under the 1939 Act. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is filed by the
Company with the Commission and as of each Representation Date, will
not, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, as of the date
hereof does not, and as of each Representation Date will not, contain
an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by or
on behalf of the Agents expressly for use in the Registration
Statement or Prospectus.
(ii) Incorporated Documents. The documents incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
1933 Act, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case may
be, in all material respects with the requirements of the 1934 Act
and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
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therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(iii) Accountants. The accountants who certified the
financial statements and supporting schedules included or
incorporated by reference in the Prospectus are, to the best
knowledge of the Company, independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries
as at the dates indicated and the results of their operations for the
periods specified; except as otherwise stated in the Registration
Statement, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein.
(v) Material Changes or Material Transactions. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated herein, (a)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, (b) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company
and its subsidiaries considered as one enterprise, and (c) except for
the regular dividends, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(vi) Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Utah with corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus; and the Company
is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so
qualify or be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse
Effect").
(vii) Subsidiaries. Each subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified
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as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership of property or the conduct of business,
except where the failure to so qualify or be in good standing would
not have a Material Adverse Effect; and all of the issued and
outstanding capital stock of each subsidiary has been duly authorized
and validly issued, is fully paid and nonassessable and is owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(viii) Capital Stock. The shares of issued and outstanding
common stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable.
(ix) Authorization and Validity of the Indenture and the
Notes. The Notes have been duly authorized for issuance and sale
pursuant to this Agreement and, when issued and delivered pursuant to
this Agreement against payment of the consideration therefor
specified in the Prospectus or pursuant to any Terms Agreement, the
Notes will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture,
which will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and
the Indenture will be duly qualified under the 1939 Act and will
constitute a valid and legally binding instrument of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and general equitable principles; and the Notes and
the Indenture conform to the descriptions thereof in the Prospectus.
(x) No Defaults; Regulatory Approvals. Neither the Company
nor any of its subsidiaries is in violation of its charter or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject, which
violations or defaults in the aggregate would have a Material Adverse
Effect; and the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein and therein and
pursuant to any applicable Terms Agreement have been duly authorized
by all necessary corporate action and will not conflict with or
constitute a breach of, or a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries, except as expressly
contemplated in the Indenture or except as would not have a Material
Adverse Effect, pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
any of its subsidiaries is subject, nor will such action result
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in any violation of the provisions of the charter or by-laws of the
Company or, except as would not have a Material Adverse Effect, any
applicable law, administrative regulation or administrative or court
decree.
(xi) Legal Proceedings; Contracts. There is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened against, the Company or any of its subsidiaries,
which is required to be disclosed in the Registration Statement
(other than as disclosed therein) or which would result in any
material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or which
would materially and adversely affect the properties or assets
thereof or which would materially and adversely affect the
consummation of this Agreement or any Terms Agreement; all pending
legal or governmental proceedings to which the Company of any
subsidiary is a party or which any of their property is subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of
the Company or any of its subsidiaries which are required to be filed
as exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
(xii) No Governmental Authorization. No authorization,
approval or consent of any court or governmental authority or agency
is necessary in connection with the sale of the Notes hereunder,
except such as may be required under the 1933 Act, the 1933 Act
Regulations and state securities laws and except as have been
obtained.
(xiii) Possession of Permits. The Company and its
subsidiaries possess such valid franchises, certificates of
convenience and necessity, easements, rights-of-way, operating
rights, licenses, permits, consents, authorizations and orders of
governmental political subdivisions or regulatory authorities as are
necessary to conduct the business now operated by them, except those
the failure of which to possess would not have a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification thereof which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding would have a
Material Adverse Effect.
(xiv) Investment Company Act. Neither the Company nor any of
its subsidiaries is regulated or required to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xv) Ratings. The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are rated [ ]
by Moody's Investors Service, Inc. and [ ] by Standard & Poor's
Ratings Services, or such other rating as to which the Company shall
have most recently notified the Agents pursuant to Section 4(a)
hereof.
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(b) Additional Certifications. Any certificate signed by any director
or officer of the Company and delivered to the Agents or to counsel for the
Agents in connection with an offering of Notes or the sale of Notes to one or
more Agents as principal shall be deemed a representation and warranty by the
Company to the Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, each Agent agrees, when acting as an agent of the Company, to use
its reasonable efforts to solicit offers to purchase the Notes upon the terms
and conditions set forth herein and in the Prospectus. In connection with the
solicitation of offers to purchase Notes, the Agents are not authorized to
provide any written information relating to the Company to any prospective
purchaser other than the Prospectus and documents incorporated by reference in
the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of offers to purchase from the Company until such time as the Company has
advised the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and the Agents, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto; provided, however, that the Company shall only be obligated to pay one
such fee with respect to any particular Note so sold.
The purchase price, interest rate, maturity date and other terms of
the Notes shall be agreed upon by the Company and the Agents and set forth in
a pricing supplement to the Prospectus to be prepared following each
acceptance by the Company of an offer for the purchase of Notes. Except as may
be otherwise provided in such supplement to the Prospectus, the Notes will be
issued in denominations of $1,000 or any larger amount that is an integral
multiple of $1,000. All Notes sold through the Agents as agents will be sold
at 100% of their principal amount unless otherwise agreed to by the Company
and the Agents. Each Agent acknowledges and agrees that any funds which such
Agent receives in respect of a purchase of Notes, which purchase has been
solicited by such Agent, as agent of the Company, will be received, held and
disposed of by such Agent, as agent of the Company.
(b) Purchases as Principals. Each sale of Notes to one or more Agents
as principal shall be made in accordance with the terms contained herein and,
if requested by such Agent, pursuant to a separate agreement which will
provide for the sale of such Notes to, and the purchase and reoffering thereof
by, such Agent or Agents. Each such separate agreement (which
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<PAGE>
may be an oral agreement) between one or more Agents and the Company is herein
referred to as a "Terms Agreement". Unless the context otherwise requires,
each reference contained herein to "this Agreement" shall be deemed to include
any Terms Agreement between the Company and one or more Agents. Each such
Terms Agreement, whether oral or in writing, shall be with respect to such
information (as applicable) as is specified in Exhibit A hereto. An Agent's
commitment to purchase Notes as principal pursuant to any Terms Agreement or
otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by each Agent
pursuant thereto, the price to be paid to the Company for such Notes (which,
if not so specified in a Terms Agreement, shall be at a discount equivalent to
the applicable commission set forth in Schedule A hereto), the time and place
of delivery of and payment for such Notes, any provisions relating to rights
of, and default by purchasers acting together with the Agents in the
reoffering of the Notes, and such other provisions (including further terms of
the Notes) as may be mutually agreed upon. The Agents may utilize a selling or
dealer group in connection with the resale of the Notes purchased by the
Agents. Such Terms Agreement shall also specify whether or not any officer's
certificate, opinions of counsel or comfort letter specified in Sections 7(b),
7(c) and 7(d) hereof shall be required to be delivered by the Company on the
related Settlement Date.
(c) Administrative Procedures. Administrative procedures with respect
to the sale of Notes shall be agreed upon from time to time by the Agents and
the Company (the "Procedures"). The initial Procedures, which are set forth in
Exhibit B hereto, shall remain in effect until changed by agreement between
the Company and the Agents or, with respect to the sale of the Notes to one or
more Agents as principal, unless modified by the applicable Terms Agreement.
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures.
(d) Delivery of Closing Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the office of Skadden,
Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York 10022 on
the date hereof, or at such other time or place as the Agents and the Company
may agree.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance
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by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose
and (vi) any change in the rating assigned by any nationally recognized
statistical rating organization to the Program or any debt securities
(including the Notes) of the Company or the public announcement by any
nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of the Program or any
such debt securities. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates, maturity or price of Notes or relating solely to an offering
of debt securities other than the Notes), whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish the
Agents with copies of any such amendment or supplement or other documents
proposed to be filed or prepared a reasonable time in advance of such proposed
filing or preparation, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which the Agents or
counsel to the Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as each such Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on which
such Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which
it is necessary, in the reasonable opinion of counsel for the Agents or
counsel for the Company, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state
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any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice
shall be given, and confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in the Agents' capacity as agents
and to cease sales of any Notes the Agents may then own as principal pursuant
to a Terms Agreement, and the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct
such untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements purchasing prior to the date on which
such financial information is released to the general public.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (1) of this Section, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall, prior to the
delivery of the Prospectus to any purchaser of the Notes purchasing after the
date on which such financial information is released to the general public, by
the filing of documents pursuant to the 1934 Act in the ordinary course, the
1933 Act or otherwise cause the Prospectus to be amended or supplemented to
include or incorporate by reference financial information with respect thereto
and corresponding information for the comparable period of the preceding
fiscal year included in such release (but not any narrative information
included in each such release), as well as such other information and
explanations as shall be necessary for an understanding thereof or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (1) of this Section, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company
for the preceding fiscal year, the Company shall furnish such information to
the Agents, confirmed in writing, and shall, prior to the delivery of the
Prospectus to any purchaser of the Notes purchasing after the date on which
such financial information is released to the general public, cause the
Registration Statement and the Prospectus to be amended, by the filing of
documents pursuant to the 1934 Act in the ordinary course, the 1933 Act or
otherwise, to include or incorporate by reference such audited financial
statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall
be necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
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(h) Earnings Statements. The Company, by applying the provisions of
Rule 158 under the 1933 Act, will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering each twelve month period
beginning, in each case, not later than the first day of the Company=s fiscal
quarter next following the "effective date" (as defined in such Rule 158) of
the Registration Statement. Nothing in this Section 4(h) shall require the
Company to make such earnings statement available more frequently than once in
any period of twelve months.
(i) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act. Such documents will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and to the extent such documents are incorporated by reference in
the Prospectus, when read together with the other information in or
incorporated by reference into the Prospectus, will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(k) Stand-Off Agreement. If required pursuant to the terms of a Terms
Agreement, between the date of any Terms Agreement and the Settlement Date
with respect to such Terms Agreement, the Company will not, without the prior
written consent of each Agent party to such Terms Agreement, directly or
indirectly, sell, offer to sell, contract to sell, grant any option for the
sale of or otherwise dispose of, or announce the offering of, any debt
securities of the Company (other than the Notes that are to be sold pursuant
to such Terms Agreement and commercial paper or borrowings from commercial
banks or affiliates of the Company in the ordinary course of business), except
as may otherwise be provided in any such Terms Agreement.
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section or the provisions of Section 7
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hereof during any period from the time (i) the Agents shall have been notified
by the Company to suspend solicitation of offers to purchase the Notes in
their capacity as agents and (ii) the earlier of the date on which no Agent
shall then hold any Notes as principal purchased pursuant to a Terms Agreement
and the date which is 30 days (nine months with respect to subsection (e) of
this Section) from the date on which the Agents shall have received written
notice from the Company to suspend solicitation of purchases of the Notes, to
the time the Company shall determine that solicitation of offers to purchase
the Notes should be resumed or shall subsequently enter into a new Terms
Agreement with any Agent.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to solicit offers to purchase the Notes
as agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of the Agents to purchase
Notes as principals pursuant to a Terms Agreement or otherwise will be subject
to the accuracy of the representations and warranties on the part of the
Company herein and to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its covenants and agreements
herein contained and to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance reasonably satisfactory to the Agents and their counsel:
(1) Opinion of Gary G. Sackett. The opinion of Gary G.
Sackett, counsel for the Company, who may rely as to all matters
governed by Federal and New York law upon the opinion of Skadden,
Arps, Slate, Meagher & Flom LLP referred to below, to the effect
that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of
the State of Utah.
(ii) The Company has corporate power and authority
to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation and is in good standing in
all other jurisdictions in which it owns or leases
substantial properties or in which the conduct of its
business requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company.
(iii) The sale and issuance of the Notes have been
duly authorized by the requisite corporate action on the
part of the Company and the Notes, when executed and
authenticated in accordance with the terms of the Indenture,
will be
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valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws now or hereinafter in effect
relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity); in expressing the opinion set forth in this
paragraph (iii), such counsel may assume that the Trustee's
certificate of authentication of the Notes have been manually
signed by one of the Trustee's authorized officers and that
the Notes, in the form delivered to the Agents, conform to
the specimens of the Notes examined by such counsel, which
facts need not be verified by an inspection of the
individual Notes.
(iv) The execution, delivery and performance of the
Indenture and of this Agreement and any applicable Terms
Agreement and the issuance and sale of the Notes and
compliance with the terms and provisions hereof and thereof
will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, (a) any
order known to such counsel of any governmental agency
having jurisdiction over the Company or any of its
properties or any agreement or instrument known to such
counsel to which the Company is a party or by which the
Company is bound or to which any of the properties of the
Company is subject, which would cause a material adverse
change in the financial position, shareholders' equity or
results of operations of the Company or affect the validity
of the Notes or the legal authority of the Company to comply
with the terms of the Notes, the Indenture, this Agreement
or any applicable Terms Agreement or (b) the charter or
by-laws of the Company; and the Company has full power and
authority to authorize, issue and sell the Notes as
contemplated by this Agreement and any Terms Agreement.
(v) The Indenture has been duly authorized,
executed and delivered by the Company and (assuming the due
authorization, execution and delivery of the Indenture by
the Trustee) is a valid and binding agreement of the
Company, enforceable against the Company in accordance with
its terms, except to the extent enforcement thereof may be
limited by (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or
hereinafter in effect relating to or affecting creditors'
rights generally, and (b) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity).
(vi) This Agreement and any applicable Terms
Agreement have each been duly authorized, executed and
delivered by the Company.
(vii) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the transactions contemplated
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by this Agreement and any Terms Agreement, except such as
may be required under the 1933 Act, the 1939 Act, state
securities or Blue Sky laws, and except as have been obtained.
(2) Opinion of Company Counsel. The opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel for the Company, to
the effect that:
(i) The Notes, when approved for issuance, executed
and authenticated in accordance with the terms of the
Indenture, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof
may be limited by (a) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws
now or hereinafter in effect relating to or affecting
creditors' rights generally and (b) general principles of
equity (regardless of whether enforceability is considered
in a proceeding at law or in equity); in expressing the
opinion set forth in this paragraph (i), such counsel may
assume that the Trustee's certificates of authentication of
the Notes have been manually signed by one of the Trustee's
authorized officers and that the Notes, in the form
delivered to the Agents, conform to the specimens thereof,
examined by such counsel, which facts need not be verified
by an inspection of the individual Notes.
(ii) The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in
the Prospectus.
(iii) The Indenture has been duly executed and
delivered by the Company (to the extent such execution and
delivery are matters governed by the laws of the State of
New York) and (assuming the due authorization, execution and
delivery of the Indenture by the Trustee) is a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent
enforcement thereof may be limited by (a) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws now or hereinafter in effect relating
to or affecting creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity).
(iv) This Agreement and any applicable Terms
Agreement have each been duly executed and delivered by the
Company (to the extent such execution and delivery are
matters governed by the laws of the State of New York).
(v) The Registration Statement and the Prospectus,
as of their respective effective or issue dates (but
excluding the Form T-1 and the financial statements and the
related notes, schedules and other financial data included
or incorporated by reference in or excluded from the
Registration Statement or the
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exhibits thereto, as to which such counsel need express no
opinion), and the Indenture
appeared on their face to be appropriately responsive in all
material respects to the requirements of the 1933 Act, the
1933 Act Regulations and the 1939 Act, as applicable, except
that such counsel need not assume any responsibility for the
accuracy, completeness or fairness of the statements
contained or incorporated by reference in the Registration
Statement or the Prospectus except to the extent set forth
in paragraph (ii) above.
(vi) Such counsel does not know of any legal or
governmental proceedings required to be described in the
Registration Statement or Prospectus which are not described
as required, nor of any contracts or documents required to
be filed as exhibits to the Registration Statement which are
not described and filed as required.
(vii) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the consummation by the Company of the transactions
contemplated by this Agreement and any applicable Terms
Agreement, except such as may be required by the 1933 Act,
the Trust Indenture Act, state securities or Blue Sky laws
and except as have been obtained.
(3) Opinion of Counsel to the Agents. The opinion of Brown &
Wood LLP, counsel to the Agents, who may rely as to all matters
governed by Utah law upon the opinion of Gary G. Sackett, referred to
above, covering the matters referred to in subparagraph (1) under the
subheading (i) and subparagraph (2) under the subheadings (i) through
(v), inclusive, above.
(4) In giving their opinions as of the date hereof required
by subsection (a)(2) and (a)(3) of this Section, Skadden, Arps,
Slate, Meagher & Flom LLP and Brown & Wood LLP shall each
additionally state the time and date on which Registration Statement
was declared effective under the 1933 Act, or if such counsel have
not received an effectiveness order from the Commission, that such
counsel have been advised by the Commission of the time and date on
which the Registration Statement was declared effective and the
Indenture was qualified under the Trust Indenture Act and, to the
best of such counsel's knowledge, that no stop order suspending the
Registration Statement's effectiveness has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission. In addition, each such counsel shall
state that they have participated in conferences with officers and
representatives of the Company, representatives of the independent
accountants of the Company, and the Agents, at which the contents of
the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel are not passing upon, and
do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus and have made no independent check or verification
thereof, on the basis of the foregoing, no facts have
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come to such counsel's attention that lead them to believe that the
Registration Statement, at the time it became effective, and if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement and prior to the date
of such statement, then at the time such amendment became effective
or at the time of the most recent such filing (to the extent deemed
to be incorporated by reference in the Registration Statement and
Prospectus), or (if such opinion is being delivered in connection
with a Terms Agreement pursuant to Section 7(c) hereof) at the date
of any Terms Agreement and at the Settlement Date with respect
thereto, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, as amended or supplemented at
the date hereof, or (if such opinion is being delivered in connection
with a Terms Agreement pursuant to Section 7(c) hereof) at the date
of any Terms Agreement and at the Settlement Date with respect
thereto, as the case may be, contains or contained an untrue
statement of a material fact or omits or omitted to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. Such
counsel may state that they express no opinion or belief with respect
to the Form T-1 or to the financial statements and the related notes,
schedules and other financial data included in or excluded from the
Registration Statement or the exhibits thereto or incorporated by
reference in such Registration Statement or Prospectus.
(5) In giving his opinion required by Section 7(c), Gary G.
Sackett shall additionally state the time and date on which
Registration Statement was declared effective under the 1933 Act, or
if such counsel has not received an effectiveness order from the
Commission, that such counsel has been advised by the Commission of
the time and date on which the Registration Statement was declared
effective and, to the best of such counsel's knowledge, that no stop
order suspending the Registration Statement's effectiveness has been
issued and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission. In addition, such
counsel shall state that he has participated in conferences with
officers and representatives of the Company, representatives of the
independent accountants of the Company, and the Agents, at which the
contents of the Registration Statement, the Prospectus and any
amendments or supplements thereto, and related matters were discussed
and, although such counsel is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus or
any amendments or supplements thereto and has made no independent
check or verification thereof, on the basis of the foregoing, no
facts have come to such counsel's attention that lead him to believe
that the Registration Statement, at the date thereof, and if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement and prior to the date
of such statement, then at the time such amendment became effective
or at the time of the most recent such filing (to the extent deemed
to be
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incorporated by reference in the Registration Statement and
Prospectus), or (if such opinion is being delivered in connection
with a Terms Agreement) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus, as amended
or supplemented at the date thereof, or (if such opinion is being
delivered in connection with a Terms Agreement) at the date of any
Terms Agreement and at the Settlement Date with respect thereto, as
the case may be, contains or contained an untrue statement of a
material fact or omits or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
counsel may state that he expresses no opinion or belief with respect
to the Form T-1 or to the financial statements, schedules and other
financial data included in or excluded from the Registration
Statement or the exhibits thereto or incorporated by reference in
such Registration Statement or Prospectus.
(b) Officer's Certificate. At the date hereof the Agents shall have
received a certificate of the President or any Vice President and a principal
financial or accounting officer of the Company, dated as of the date hereof,
to the effect that (i) since the respective dates as of which information is
given in the Registration Statement and the Prospectus or since the date of
any applicable Terms Agreement, there has not been any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii)
the other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the date of such certificate, and (iv) no stop
order suspending the effectiveness of the Registration Statement under the
1933 Act has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission. As used in this Section 5(b), the
term "Prospectus" means the Prospectus in the form first provided to the
applicable Agent or Agents for use in confirming sales of the Notes.
(c) Comfort Letter. On the date hereof, the Agents shall have
received a letter from Ernst & Young LLP, dated as of the date hereof and in
form and substance reasonably satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations and no information concerning their
relationship with or interest in the Company is required by Item 10
of the Registration Statement.
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(ii) It is their opinion that the consolidated financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and covered by their opinions
incorporated therein comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations.
(iii) They have read any unaudited financial statements
included in the Registration Statement and Prospectus.
(iv) On the basis of the reading referred to in clause (iii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that: (A) the unaudited financial statements, if any,
included or incorporated by reference in the Registration Statement
and Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the regulations promulgated under the
1934 Act or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of
the audited financial statements included or incorporated by
reference therein; (B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified date not
more than five days prior to the date of such letter, there was any
change in the capital stock or any increase in the short-term
indebtedness or long-term debt of the Company or, at the date of the
latest available balance sheet read by such accountants, or at a
subsequent specified date not more than five days prior to the date
of such letter, there was any decrease in the net current assets or
net assets, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus; or (C) for the twelve-month period ending on the closing
date of the latest available income statement read by such
accountants, or from such latest available income statement read by
such accountants to a specified date not more than five days prior to
the date of such letter, there were any decreases, as compared with
the corresponding period of the previous year, in total revenues,
operating income or income (in each case, from continuing
operations), or (with respect only to quarterly accounting periods)
in the ratio of earnings to fixed charges; except in all cases set
forth in clauses (B) and (C) above for changes, increases or
decreases which the Prospectus discloses have occurred or may occur.
(v) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included or incorporated by reference in the Registration
Statement and the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such
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general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results.
(d) Other Documents. On the date hereof and on each Settlement Date
with respect to any applicable Terms Agreement, counsel to the Agents shall
have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or
in order to evidence the accuracy and completeness of any of the
representations and warranties or the fulfillment of any of the conditions
herein contained.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agent party thereto, any applicable Terms Agreement) may be
terminated by any of the Agents (as to itself only) by notice to the Company
at any time and any such termination shall be without liability of any party
to any other party, except that the covenant regarding provision of an
earnings statement set forth in Section 4(h) hereof, the provisions concerning
payment of expenses under Section 10 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery set forth in
Section 11 hereof, the provisions relating to governing law and forum set
forth in Section 14 and the provisions set forth under "Parties" of Section 15
hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds to the Agent. If
such failure occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its reasonable loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance
by it of an offer for the purchase of Notes, and each delivery of Notes to one
or more of the Agents pursuant to a Terms Agreement, shall be deemed to be an
affirmation that the representations and warranties of the Company contained
in this Agreement and in any certificate theretofore delivered to the Agents
pursuant hereto are true and correct at the time of such acceptance or
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sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser
or his agent, or to the Agent or Agents, of the Note or Notes relating to such
acceptance or sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and
supplemented to each such time).
(b) Subsequent Delivery of Certificates. Subject to the provisions of
Section 4(l) hereof, each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in the
interest rates, maturity or price of Notes or similar changes or an amendment
or supplement which relates exclusively to an offering of debt securities
other than the Notes), or there is filed with the Commission any document
incorporated by reference into the Prospectus or (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to one or more Agents
pursuant to a Terms Agreement, the Company shall furnish or cause to be
furnished to the Agents as soon as practicable a certificate dated the date of
filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form satisfactory to the Agents and to counsel to the Agents to the effect
that the statements contained in the certificate referred to in Section 5(b)
hereof which was last furnished to the Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in said Section 5(b), modified
as necessary to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Subject to the provisions
of Section 4(l) hereof and unless the Agents shall otherwise specify, each
time that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates, maturity or price of the Notes or similar
changes or solely for the inclusion of additional financial information or an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), or there is filed with the Commission any
document incorporated by reference into the Prospectus, or, if required
pursuant to the terms of a Terms Agreement, the Company sells Notes to one or
more Agents pursuant to a Terms Agreement, the Company shall furnish or cause
to be furnished as soon as practicable to the Agents and to counsel to the
Agents a written opinion of each of Gary G. Sackett, counsel for the Company
and Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Company,
or other counsel satisfactory to the Agents dated the date of filing with the
Commission of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and substance
satisfactory to the Agents and to counsel to the Agents, of the same tenor as
the opinions referred to in Section 5(a)(1), 5(a)(2) and 5(a)(5) hereof, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
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opinions; or, in lieu of such opinions, counsel last furnishing such opinion
to the Agents shall furnish the Agents with a letter substantially to the
effect that the Agents may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Subject to the provisions
of Section 4(l) hereof and unless the Agents shall otherwise specify, each
time that the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information or there is filed
with the Commission any document incorporated by reference into the Prospectus
which contains additional financial information or, (if required pursuant to
the terms of a Terms Agreement) the Company sells Notes to one or more Agents
pursuant to a Terms Agreement, the Company shall cause Ernst & Young LLP or
other independent certified public accountants reasonably satisfactory to the
Agents, as soon as practicable to furnish the Agents a letter, dated the date
of the date of filing with the Commission of such supplement or document, the
date of effectiveness of such amendment, or the date of such sale, as the case
may be, in form reasonably satisfactory to the Agents, of the same tenor as
the letter referred to in Section 5(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the date
of such letter, and with such changes as may be necessary to reflect changes
in the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement
or the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, Ernst & Young LLP may limit the
scope of such letter to the unaudited financial statements included in such
amendment or supplement unless any other information included therein of an
accounting, financial or statistical nature is of such a nature that, in the
reasonable judgment of the Agents, such letter should cover such other
information.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls any Agent
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
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(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred,
(including, subject to Section 8(c) hereof, the reasonable fees and
disbursements of counsel chosen by each Agent) in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or
special counsel for the Company by or on behalf of any Agent expressly for use
in the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto). The foregoing indemnity with respect to
any untrue statement contained in or omission from a preliminary prospectus
shall not inure to the benefit of any Agent (or any person controlling such
Agent) from whom the person asserting any such loss, liability, claim, damage
or expense purchased any of the Notes which are the subject thereof if such
person did not receive a copy of the Prospectus (or the Prospectus as amended
or supplemented) (in each case exclusive of the documents from which
information is incorporated by reference) at or prior to the written
confirmation of the sale of such Notes to such person and the untrue statement
contained in or omission from such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented).
(b) Indemnification of Company. Each Agent severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section 8, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto)
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
liability, claim, damage, expense or action as such expenses are incurred.
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(c) General. Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under Section 8 or 9 hereof (whether or not the indemnified parties are actual
or potential parties hereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided however, this provision
does not limit the indemnifying party from contesting the reasonableness and
appropriateness of the attorneys' fees and expenses.
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SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8
hereof is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the Agents
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Company and one or more of the Agents, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Agents on the other from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Agents on the other in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Agents on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to the
total discounts and commissions received by the Agents. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Agents and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
liabilities, claims, damages and expenses referred to in the first sentence of
this Section 9 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this Section 9.
Notwithstanding the provisions of this Section 9, no Agent shall be required
to contribute any amount in excess of the amount by which the total price at
which the Notes sold through or by it to the public exceeds the amount of any
damages which such Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person, if any, who controls an Agent within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Agent, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company. The Agents' obligations in this Section 9 to
contribute are several in proportion to their respective obligations and not
joint.
25
<PAGE>
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The printing and filing of the Registration Statement as
originally filed and each amendment thereto and the Prospectus and
any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any Calculation
Agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the fees and disbursements of counsel for
the Agents in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents of copies of the
Registration Statement and any amendments thereto, and of the
Prospectus and any amendments or supplements thereto, and the
delivery by the Agents of the Prospectus and any amendments or
supplements thereto in connection with solicitations or confirmations
of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to
the Agents of copies of the Indenture and all supplements and
amendments thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the
Agent incurred with the prior written approval of the Company;
26
<PAGE>
(l) The cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) The fees and expenses of any Depositary (as defined in
the Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or controlling person of, or
by or on behalf of the Company, and shall survive each delivery of and payment
for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
Terms Agreement) may be terminated for any reason, at any time by either the
Company or the Agents upon the giving of 30 days' written notice of such
termination to the other party hereto; provided, however, that the termination
of this Agreement by an Agent shall terminate this Agreement only between such
Agent and the Company and the Company's notice of termination as to any one
Agent shall terminate this Agreement only between itself and such Agent.
(b) Termination of a Terms Agreement. The Agent or Agents party to a
Terms Agreement may terminate any Terms Agreement, immediately upon notice to
the Company, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak
of hostilities or escalation thereof or other calamity or crisis, the effect
of which is such as to make it, in the reasonable judgment of the Agent or
Agents party to such Terms Agreement, impracticable to market the Notes
subject to such Terms Agreement or enforce contracts for the sale of such
Notes, or (iii) if trading in the Notes has been suspended by the Commission,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange shall have been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium shall have been
declared by either Federal, New York or Utah authorities, or (iv) the rating
assigned by any nationally recognized statistical rating organization to the
Program or any debt securities (including the Notes) of the Company as of the
date of such agreement shall have been lowered since that date or if any such
rating organization shall have publicly announced that it has under
27
<PAGE>
surveillance or review, with possible negative implications, its rating of the
Program or any debt securities (including the Notes) of the Company, or (v) if
there shall have come to the Agent's or Agents' attention any facts that would
cause such Agent or Agents to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing
at the time of such delivery, not misleading. As used in this Section 12(b),
the term "Prospectus" means the Prospectus in the form first provided to the
applicable Agent or Agents for use in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) each Agent shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) the Agents shall
own any Notes purchased pursuant to a Terms Agreement with the intention of
reselling them or (b) an offer to purchase any of the Notes has been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto has not occurred, the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until such Notes are so resold
or delivered, as the case may be, and (iii) the covenant set forth in Section
4(h) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the
provisions of Sections 11 and 15 hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the
terms and provisions hereof shall be in writing, either delivered by hand, by
mail or by telex, telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Questar Pipeline Company
180 East 100 South Street
P.O. Box 45360
Salt Lake City, Utah 84145-0360
Attention: Vice President, Treasurer and
Chief Financial Officer
Telecopy: (801) 324-5483
If to Merrill Lynch:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
28
<PAGE>
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management,
Telecopy: (212) 449-2234
If to Salomon Brothers:
Salomon Brothers Inc
390 Greenwich Street - 4th Floor
New York, New York 10013
Attention: MTN Product Management/Origination
Telecopy: (212) 723-8854
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such State. Any
suit, action or proceeding brought by the Company against the Agents in
connection with or arising under this Agreement shall be brought solely in the
state or federal court of appropriate jurisdiction located in the Borough of
Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the parties hereto and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Notes shall be deemed to be a successor by reason merely of such purchase.
29
<PAGE>
SECTION 16. Captions.
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
30
<PAGE>
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
QUESTAR PIPELINE COMPANY
By:
--------------------------------
Stephen E. Parks
Vice President, Treasurer and Chief
Financial Officer
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
----------------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
----------------------------------
Name:
Title:
31
<PAGE>
EXHIBIT A
Questar Pipeline Company
180 East 100 South
Salt Lake City, Utah 84145
Re: Distribution Agreement among the Questar Pipeline Company,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Brothers Inc dated August __, 1998
The undersigned agrees to purchase the following principal amount
of the Medium-Term Notes, Series A, referred to in the above-mentioned
Agreement: $___________________
[The undersigned agrees to purchase the aggregate principal amount of
Medium-Term Notes, Series A, referred to in the above-mentioned Agreement set
forth below:]
[Merrill Lynch, Pierce, Fenner & Smith
Incorporated ........................... $___________]
[Salomon Brothers Inc .............................. $___________]
The terms of such Medium-Term Notes, Series A, shall be as set forth
below.
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates (if other than April 1 and October 1):
Regular Record Dates (if other than March 15 and
September 15):
If Floating Rate Note:
Base Rate or Rates:
Initial Interest Rate:
Initial Interest Reset Date:
Spread, if any:
Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Payment Period:
Interest Reset Period:
A-1
<PAGE>
Calculation Agent (if other than First Security Bank, N.A.):
If Redeemable:
Redemption Commencement Date:
Redemption Percentage:
Annual Redemption Percentage:
If Repayable:
Optional Repayment Date(s):
Principal Amount: $
Stated Maturity:
Trade Date:
Issue Price: %
Agent's Discount or Commission:
Original Issue Date:
Settlement Date and Time:
Additional Terms:
The Certificate referred to in Section 7(b), the opinions of counsel
referred to in Section 7(c) and the accountants' letter referred to in Section
7(d) of the above-mentioned Agreement will [not] be required, and the
stand-off agreement set forth in Section 4(k) of the above-mentioned Agreement
will [not] be applicable.
This Agreement and all of the rights and obligations of the parties
hereto shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such
State.
A-2
<PAGE>
If the foregoing is in accordance with our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
[MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED]
By:
-----------------------------------------
Authorized Signatory
[SALOMON BROTHERS INC]
By:
-----------------------------------------
Authorized Signatory
CONFIRMED AND ACCEPTED,
as of the date first above written.
QUESTAR PIPELINE COMPANY
By:
--------------------------------
Name:
Title:
A-3
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the related Agent, on a discount basis, a commission for the sale of
each Note by such Agent equal to the principal amount of such Note multiplied
by the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year................ .125%
From 1 year to less than 18 months............... .150
From 18 months to less than 2 years.............. .200
From 2 years to less than 3 years................ .250
From 3 years to less than 4 years................ .350
From 4 years to less than 5 years................ .450
From 5 years to less than 6 years................ .500
From 6 years to less than 7 years................ .550
From 7 years to less than 10 years............... .600
From 10 years to less than 15 years.............. .625
From 15 years to less than 20 years.............. .700
From 20 years to 30 years........................ .750
<PAGE>
- -------------------------------------------------------------------------------
QUESTAR PIPELINE COMPANY
TO
FIRST SECURITY BANK, N.A.,
Trustee
------------------------------------
INDENTURE
Dated as of August 17, 1998
------------------------------------
DEBT SECURITIES
- -------------------------------------------------------------------------------
<PAGE>
QUESTAR PIPELINE COMPANY
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of August 17, 1998
Trust Indenture
Act Section Indenture Section
ss. 310(a) ..................................... 606(d)
609
610
(b) ..................................... 603
606(d)
ss. 311(a) ..................................... 603
(b) ..................................... 703
ss. 312(a) ..................................... 701
702
(b) ..................................... 702
(c) ..................................... 702
ss. 313(a) ..................................... 703
(b) ..................................... 703
(c) ..................................... 703
704
(d) ..................................... 703
ss. 314(a) ..................................... 704
(b) ..................................... Not Applicable
(c)(1) ..................................... 102
(c)(2) ..................................... 102
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 101
102
203
ss. 315(a) ..................................... 601(a)
(b) ..................................... 703
(c) ..................................... 601
(d) ..................................... 601(a)
(d)(1) ..................................... 601(a)
(d)(2) ..................................... 601(c)
(d)(3) ..................................... 601(e)
(e) ..................................... Not Applicable
ss. 316(a)(1)(A)..................................... 512
(a)(1)(B)..................................... 513
(a)(2) ..................................... Not Applicable
(b) ..................................... 508
ss. 317(a)(1) ..................................... 503
(a)(2) ..................................... 504
(b) ..................................... 1003
ss. 318 ..................................... 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION................................................................ 2
SECTION 101. Definitions............................................................................2
SECTION 102. Compliance Certificates and Opinions..................................................12
SECTION 103. Form of Documents Delivered to Trustee................................................13
SECTION 104. Acts of Holders.......................................................................13
SECTION 105. Notices, Etc., to Trustee and Company.................................................16
SECTION 106. Notice to Holders of Securities; Waiver...............................................16
SECTION 107. Conflict with Trust Indenture Act.....................................................17
SECTION 108. Effect of Headings and Table of Contents..............................................17
SECTION 109. Successors and Assigns................................................................17
SECTION 110. Separability Clause...................................................................18
SECTION 111. Benefits of Indenture.................................................................18
SECTION 112. Governing Law.........................................................................18
SECTION 113. Moneys of Different Currencies to be Segregated.......................................18
SECTION 114. Payment to be in Proper Currency......................................................18
SECTION 115. Language of Notices...................................................................19
SECTION 116. Legal Holidays........................................................................19
ARTICLE TWO SECURITY FORMS........................................................................19
SECTION 201. Forms Generally.......................................................................19
SECTION 202. Form of Trustee's Certificate of Authentication.......................................20
SECTION 203. Securities in Global Form.............................................................20
ARTICLE THREE THE SECURITIES........................................................................21
SECTION 301. Amount Unlimited; Issuable in Series..................................................21
SECTION 302. Currency; Denominations...............................................................24
SECTION 303. Execution, Authentication, Delivery and Dating........................................25
SECTION 304. Temporary Securities..................................................................27
SECTION 305. Registration, Registration of Transfer and Exchange...................................28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................................31
SECTION 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.....................................32
SECTION 308. Persons Deemed Owners.................................................................34
SECTION 309. Cancellation..........................................................................35
SECTION 310. Computation of Interest...............................................................36
ARTICLE FOUR SATISFACTION, DISCHARGE AND DEFEASANCE................................................36
SECTION 401. Satisfaction and Discharge of Indenture...............................................36
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
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<S> <C> <C>
SECTION 402. Application of Trust Money............................................................37
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of Any Series....................38
ARTICLE FIVE REMEDIES..............................................................................41
SECTION 501. Events of Default.....................................................................41
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................................42
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee...............................................................................43
SECTION 504. Trustee May File Proofs of Claim......................................................44
SECTION 505. Trustee may Enforce Claims Without Possession of Securities or
Coupons...............................................................................45
SECTION 506. Application of Money Collected........................................................45
SECTION 507. Limitation on Suits...................................................................46
SECTION 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts..............................................46
SECTION 509. Restoration of Rights and Remedies....................................................47
SECTION 510. Rights and Remedies Cumulative........................................................47
SECTION 511. Delay or Omission Not Waiver..........................................................47
SECTION 512. Control by Holders....................................................................47
SECTION 513. Waiver of Past Defaults...............................................................48
SECTION 514. Waiver of Stay or Extension Laws......................................................48
SECTION 515. Judgment Currency.....................................................................49
ARTICLE SIX THE TRUSTEE...........................................................................49
SECTION 601. Certain Rights of Trustee.............................................................49
SECTION 602. Not Responsible for Recitals or Issuance of Securities................................51
SECTION 603. May Hold Securities...................................................................51
SECTION 604. Money Held in Trust...................................................................51
SECTION 605. Compensation and Reimbursement........................................................51
SECTION 606. Resignation and Removal; Appointment of Successor.....................................52
SECTION 607. Acceptance of Appointment by Successor................................................53
SECTION 608. Merger, Conversion, Consolidation or Succession to
Business..............................................................................55
SECTION 609. Corporate Trustee Required; Eligibility...............................................55
SECTION 610. Appointment of Authenticating Agent...................................................55
SECTION 611. Notice of Defaults....................................................................57
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
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<S> <C> <C>
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY...........................................................................58
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders...............................................................................58
SECTION 702. Preservation of Information; Communications to Holders................................58
SECTION 703. Reports by Trustee....................................................................58
SECTION 704. Reports by Company....................................................................59
ARTICLE EIGHT CONSOLIDATION, MERGER OR SALE.........................................................60
SECTION 801. Consolidation, Merger or Sale.........................................................60
SECTION 802. Successor Corporation Substituted.....................................................60
ARTICLE NINE SUPPLEMENTAL INDENTURES...............................................................61
SECTION 901. Supplemental Indentures Without Consent of Holders....................................61
SECTION 902. Supplemental Indentures with Consent of Holders.......................................62
SECTION 903. Execution of Supplemental Indentures..................................................64
SECTION 904. Effect of Supplemental Indentures.....................................................64
SECTION 905. Conformity with Trust Indenture Act...................................................64
SECTION 906. Reference in Securities to Supplemental Indentures....................................64
ARTICLE TEN COVENANTS.............................................................................65
SECTION 1001. Payment of Principal, Premium and Interest and Additional
Amounts...............................................................................65
SECTION 1002. Maintenance of Office or Agency.......................................................65
SECTION 1003. Money for Securities Payments to Be Held in Trust.....................................66
SECTION 1004. Additional Amounts....................................................................68
SECTION 1005. Corporate Existence...................................................................69
SECTION 1006. Limitation on Liens...................................................................69
SECTION 1007. Waiver of Covenant....................................................................73
SECTION 1008. Statements as to Compliance; Notice of Certain Defaults...............................73
ARTICLE ELEVEN REDEMPTION OF SECURITIES..............................................................74
SECTION 1101. Applicability of Article..............................................................74
SECTION 1102. Election to Redeem; Notice to Trustee.................................................74
SECTION 1103. Selection by Trustee of Securities to be Redeemed.....................................74
SECTION 1104. Notice of Redemption..................................................................75
SECTION 1105. Deposit of Redemption Price...........................................................75
SECTION 1106. Securities Payable on Redemption Date.................................................76
SECTION 1107. Securities Redeemed in Part...........................................................77
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
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<S> <C> <C>
ARTICLE TWELVE SINKING FUNDS.........................................................................77
SECTION 1201. Applicability of Article..............................................................77
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.................................77
SECTION 1203. Redemption of Securities for Sinking Fund.............................................78
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS....................................................78
SECTION 1301. Applicability of Article..............................................................78
ARTICLE FOURTEEN SECURITIES IN FOREIGN CURRENCIES......................................................79
SECTION 1401. Applicability of Article..............................................................79
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES.....................................................79
SECTION 1501. Purposes for Which Meetings May be Called.............................................79
SECTION 1502. Call, Notice and Place of Meetings....................................................79
SECTION 1503. Persons Entitled to Vote at Meetings..................................................80
SECTION 1504. Quorum; Action........................................................................80
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings..............................................................................81
SECTION 1506. Counting Votes and Recording Action of Meetings.......................................82
</TABLE>
iv
<PAGE>
INDENTURE, dated as of August 17, 1998 (the "Indenture"),
between QUESTAR PIPELINE COMPANY, a corporation duly organized and existing
under the laws of the State of Utah (herein called "Company"), having its
principal office at 180 East 100 South Street, Salt Lake City, Utah 84111, and
FIRST SECURITY BANK, N.A., a national banking association duly incorporated and
existing under the laws of the United States of America (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery
of this Indenture. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of' 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders (as herein defined) of
the Securities or of any series thereof and any Coupons (as herein defined),
as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles and, except as to any computation required or permitted pursuant
to, and relating to any covenant of the Company contained in, any indenture
supplemental hereto relating to any series of Securities, which such
computation (unless otherwise provided in such supplemental indenture) shall
be made in accordance with generally accepted accounting principles as are
generally accepted at the date of such supplemental indenture, or except as
otherwise herein or in any indenture supplemental hereto expressly provided,
the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation; and
(4) the words "herein", "hereof", "hereto" 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.
(5) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both", not "either A or B but not both").
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes imposed on
Holders specified therein and which are owing to such Holders.
2
<PAGE>
"Affiliate" of any specified Person means any other person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" means, as of the date of determination,
the present value of net rent for the remaining term of a capital lease,
determined in accordance with GAAP, which is part of a Sale and Leaseback
Transaction, including any periods for which the lessee has the right to renew
or extend the lease. For purposes of the foregoing, "net rent" means the sum
of capitalized rental payments required to be paid by the lessee, other than
amounts required to be paid by the lessee for maintenance, repairs, insurance,
taxes, assessments, energy, fuel, utilities and similar charges. In the case
of a capital 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 to be required to be paid under such lease subsequent
to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 610 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper of general
circulation in the place of publication, printed in the official language of
the country of publication and customarily published on each Business Day,
whether or not published on Saturdays, Sundays or holidays. Whenever
successive weekly publications in an Authorized Newspaper are authorized or
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.
"Bearer Security" means any Security in the form of bearer
securities established pursuant to Section 201 which is payable to bearer and
is not a Registered Security.
"Board of Directors" means either the Board of Directors of
the Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a security evidencing all or
part of a series of Securities, issued to the Depositary for such series of
Securities in accordance with Section 303, and bearing the legend prescribed
in Section 303.
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"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"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 instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other obligor under the
Securities.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Capitalization" means, without duplication,
the sum of (a) the principal amount of Consolidated Funded Debt of the Company
and its Subsidiaries at the time outstanding, (b) the total capital
represented by the capital stock of the Company and its Subsidiaries at the
time outstanding, based, in the case of stock having par value, upon its par
value, and in the case of stock having no par value, upon the value stated on
the books of the Company, (c) the total amount of (or less the amount of any
deficit in) retained earnings and paid-in capital of the Company and its
Subsidiaries, (d) reserves for deferred federal and state income taxes arising
from timing differences, and (e) Attributable Debt, all as shown on a
consolidated balance sheet of the Company and its Subsidiaries prepared in
accordance with GAAP; provided that in determining the consolidated retained
earnings and paid-in capital of the Company and its Subsidiaries no effect
shall be given to any unrealized write-up or write-down in the value of assets
or any amortization thereof, except for accumulated provisions for
depreciation, depletion, amortization and property retirement which shall have
been created by charges made by the Company or any of its Subsidiaries on its
books.
"Consolidated Funded Debt" means the Funded Debt of the
Company and its Subsidiaries, consolidated in accordance with GAAP.
"Corporate Trust Office" means the principal office of the
Trustee in Salt Lake City, Utah, at which at any particular time its corporate
trust business shall be administered, which office at the date of initial
execution of this Indenture, as to the Trustee, is 79 South Main Street, Salt
Lake City, Utah 84111, Attention: Corporate Trust Services; except that with
respect to the presentation of Securities for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the Trustee
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in said City at which at any particular time its corporate agency business shall
be conducted, which office at the date of initial execution of this indenture,
as to the Trustee, is 79 South Main Street, Salt Lake City, Utah 84111,
Attention: Corporate Trust Services.
"Corporation" includes corporations, associations, companies
and business trusts.
"Coupon" means any interest coupon appertaining to any
Security.
"Currency" or "Money", with respect to any payment, deposit
or other transfer in respect of the principal of or any premium or interest on
or any Additional Amounts with respect to any Security, means the unit or
units of legal tender for the payment of public and private debts (or any
composite thereof) in which such payment, deposit or other transfer is
required to be made by or pursuant to the terms hereof and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the
terms hereof, means Dollars.
"Currency Indexed Note" means any Security with the amount
of principal payments determined by reference to an index Currency.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" or "U.S. Depositary" means, with respect to the
Securities of any series issuable or issued in whole or in part in global
form, including Book-Entry Securities, the Person designated as Depositary or
"U.S. Depositary" by the Company pursuant to Section 301 until a successor
Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" shall mean or include each Person
who is then a Deposi tary hereunder, and if at any time there is more than one
such person "Depositary" shall be a collective reference to such Persons.
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European Communities.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means a currency issued by the government
of any country other than the United States of America.
"Funded Debt" means all Indebtedness that will mature,
pursuant to a mandatory sinking fund or prepayment provision or otherwise, and
all installments of Indebtedness that will fall due, more than one year from
the date of determination. In calculating the maturity of any
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Indebtedness, there shall be included the term of any unexercised right of the
debtor to renew or extend such Indebtedness existing at the time of
determination.
"GAAP" means generally accepted accounting principles in the
United States, as in effect on the date on which the determination is to be
made under the Indenture.
"Government Obligations", with respect to any Security,
means (i) direct obligations of the government or governments which issued
the Currency in which the principal of or any premium or interest on such
Security or any Additional Amounts in respect thereof shall be payable, in
each case where the payment or payments thereunder are supported by the full
faith and credit of such government or governments or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of such government or governments, in each case where the payment or payments
thereunder are unconditionally guaranteed as a full faith and credit
obligation by such government or governments, and which, in the case of (i) or
(ii), are not callable or redeemable at the option of the issuer or issuers
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 or other amount with respect
to 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 or other amount with respect to the Government
Obligation evidenced by such depository receipt.
"Holder" means, with respect to a Registered Security, the
Person in whose name a Security is registered in the Security Register and,
with respect to a Bearer Security (or any temporary Global Security), and/or
Coupons, the bearer thereof.
"Indebtedness" means all items of indebtedness for borrowed
money (other than unamortized debt discount and premium) which would be
included in determining total liabilities as shown on the liability side of a
balance sheet prepared in accordance with GAAP as of the date as of which
Indebtedness is to be determined, and shall include indebtedness for borrowed
money (other than unamortized debt discount and premium) with respect to which
the Company or any Subsidiary customarily pays interest secured by any
mortgage, pledge or other lien or encumbrance of or upon, or any security
interest in, any properties or assets owned by the Company or any Subsidiary,
whether or not the Indebtedness secured thereby shall have been assumed, and
shall also include guarantees of Indebtedness of others; provided that in
determining Indebtedness of the Company or any Subsidiary there shall be
included the aggregate liquidation preference of all outstanding securities of
any Subsidiary senior to its Common Stock that are not owned by the Company or
a Subsidiary; and provided, further, that Indebtedness of any Person shall not
include the following:
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(a) any indebtedness evidence of which is held in treasury
(but the subsequent resale of such indebtedness shall be deemed to constitute
the creation thereof); or
(b) any particular indebtedness if, upon or prior to the
maturity thereof, there shall have been deposited with a depository (or set
aside and segregated, if permitted by the instrument creating such
indebtedness), in trust, money (or evidence of such indebtedness as permitted by
the instrument creating such indebtedness) in the necessary amount to pay,
redeem or satisfy such indebtedness; or
(c) any indebtedness incurred to finance oil, natural gas,
hydrocarbon, inert gas or other mineral exploration or development to the extent
that the issuer thereof has outstanding advances to finance oil, natural gas,
hydrocarbon, inert gas or other mineral exploration or development, but only to
the extent such advances are not in default; or
(d) any indebtedness incurred without recourse to the Company
or any Subsid iary; or
(e) any indebtedness incurred to finance advance payments
for gas (pursuant to take-or-pay provisions or otherwise), but only to the
extent that such advance payments are pursuant to gas purchase contracts
entered into in the normal course of business; or
(f) any amount (whether or not included in determining total
liabilities as shown on the liability side of a balance sheet prepared in
accordance with GAAP) representing capital ized rent under any lease; or
(g) any indirect guarantees or other contingent obligations
in respect of indebted ness of other Persons, including agreements, contingent
or otherwise, with such other Persons or with third parties with respect to,
or to permit or assure the payment of, obligations of such other Persons,
including, without limitation, agreements to purchase or repurchase
obligations of such other Persons, to advance or supply funds to, or to invest
in, such other Persons, or to pay for property, products or services of such
other Persons (whether or not conveyed, delivered or rendered); demand charge
contracts, through-put, take-or-pay, keep-well, make-whole or maintenance of
working capital or similar agreements; or guarantees with respect to rental or
similar periodic payments to be made by such other Persons.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and with respect to any Security, by the terms and
provisions of such Security and any Coupon appertaining thereto established as
contemplated by Section 301 (as such terms and provisions may be amended
pursuant to the applicable provisions hereof) provided, however, that, if at
any time more than one Person is acting as Trustee under this Indenture due to
the appointment of one or more separate Trustees for any one or more separate
series of Securities, "Indenture" shall mean, with respect to such series of
Securities for
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which any such Person is Trustee, this Indenture as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"Independent Public Accountants" means accountants or a firm
of accountants that, with respect to the Company and any other obligor under
the Securities or the Coupons, are independent public accountants within the
meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, who may be the
independent public accountants regularly retained by the Company or who may be
other inde pendent public accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of any
legal matters relating to the Indenture or certificates required to be
provided 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.
"Legal Holiday", with respect to any Place of Payment or
other location, means a Saturday, a Sunday or a day on which banking
institutions or trust companies in such Place of Payment or other location are
authorized or obligated to be closed.
"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,
notice of option to elect repayment or otherwise and includes any Redemption
Date.
"New York Business Day" means each weekday which is not a
day on which banking institutions in New York City are authorized or obligated
by law to close.
"Office or Agency", with respect to any Securities, means an
office or agency of the Company maintained or designated in a Place of Payment
for such Securities pursuant to
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Section 1002 or any other office or agency of the Company maintained or
designated for such Securities pursuant to Section 1002 or, to the extent
designated or required by Section 1002 in lieu of such office or agency, the
Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed (i) by the
Chairman of the Board, the President or a Vice President, and (ii) by the
Controller, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, that complies with the requirements of Section 314(e)
of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company or other counsel who shall be
reasonably acceptable to the Trustee, that complies with the requirements of
Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security Registrar for
cancellation;
(ii) Securities for whose payment or redemption (a) 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 or (b) U.S. Government Obligations or Foreign
Government Securities as contemplated by Section 403 in the necessary amount
have been theretofore deposited with the Trustee in trust for the Holders of
such Securities in accordance with Section 403; 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
has been made;
(iii) any such Security with respect to which the Company
has effected defeasance pursuant to Section 403 hereof; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the Company;
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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 are present
at a meeting of Holders of Securities for quorum purposes, the principal
amount of any Original Issue Discount Securities that shall be deemed to be
Outstanding for such purposes shall be equal to the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the maturity thereof pursuant to Section
502, the principal amount of a Security denominated other than in Dollars
shall be deemed to be that amount of Dollars that could be obtained for such
principal amount on the basis of the spot rate of exchange for such Foreign
Currency or such currency unit as determined by the Company or by an
authorized exchange rate agent, the principal amount of any indexed Security
that may be counted in making such determination and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided in or
pursuant to this Indenture, and 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 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, which may be the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on, or any Additional Amounts with respect to any Securities or any
Coupon on behalf of the Company.
"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 any series, means the place or places where the principal of (and premium,
if any) and interest on, or any Additional Amounts with respect to, the
Securities of that series are payable as specified and contemplated by Section
301.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or
any Security to which a mutilated, destroyed, lost or stolen Coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which a mutilated, de stroyed, lost or
stolen Coupon appertains.
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"Redemption Date", when used with respect to any Security or
portion thereof 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
or portion thereof to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form of
Registered Securities established pursuant to Section 201 which is registered
in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 114.
"Responsible Officer", when used with respect to the
Trustee, means an officer of the Corporate Trust Department of the Trustee
engaged in the administration of corporate trust matters.
"Sale and Leaseback Transaction" means an arrangement in
which the Company or a Subsidiary sells any of its property which was placed
into service more than 120 days prior to such sale to a Person and leases it
back from that Person within 180 days of the sale.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture; provided, however, that, if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" shall mean Securities authenticated and delivered
under this Indenture, exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
principal or interest is or such Additional Amounts are due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries.
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"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" shall mean
each such Person, and as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that Series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"United States", except as otherwise provided herein or in
any Security, means the United States of America (including the states thereof
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"United States Alien", except as otherwise provided in or
pursuant to this Indenture, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "Vice President".
"Voting Stock" means stock of the class or classes of any
corporation having general voting power under ordinary circumstances to elect
at least a majority of the board of directors, managers or trustees of such
corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) provided that, for the purposes
hereof, stock which carries only the right to vote conditionally on the
happening of an event shall not be considered voting stock whether or not such
event shall have happened.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture 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 or any of them is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be furnished. Each such
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Officers' Certificate and Opinion of Counsel shall comply with Section 314(e) of
the Trust Indenture Act.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If, but only if, Securities of a series are
issuable as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such
series voting in favor thereof, either in person or by proxies duly appointed
in writing, at any meeting of Holders of Securities of such series duly called
and held in accordance with the provisions of Article Fifteen, or a
combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
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Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 315 of the Trust Indenture
Act) conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a U.S.
Depositary that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Inden ture to be made, given or taken by Holders, and a U.S. Depository
that is a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such U.S.
Depositary's standing instructions and customary practices.
The Trustee or the Company shall fix a record date for the
purpose of determining the Persons who are beneficial owners of interest in
any permanent global Security held by a U.S. Depositary entitled under the
procedures of such U.S. Depositary to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture
to be made, given or taken by Holders. If such a record date is fixed, the
Holders on such record date or their duly appointed proxy or proxies, and only
such Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action, whether or
not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other action
shall be valid or effective if made, given or taken more than 90 days after
such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement and the
date of termination of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary reasonably acceptable to the
Company, 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 Depositary, or
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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 (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Person, (3) such Bearer
Security is surrendered in exchange for a Registered Security or (4) such Bearer
Security is no longer Outstanding.
(d) The fact and date of execution of any such instrument or
writing pursuant to clause (c) above, the authority of the Person executing
the same and the principal amount and serial numbers of Bearer Securities held
by the Person so executing such instrument or writing and the date of the
commencement and the date of termination of holding the same may also be
proved in any other manner which the Trustee deems sufficient; and the Trustee
may in any instance require further proof with respect to any of the matters
referred to in this clause.
(e) The ownership of Registered Securities shall be proved
by the Security Register.
(f) 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, any Security Registrar, any Paying Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(g) Whenever for purposes of any Act to be taken hereunder
by the Holders of a series of Securities denominated in a Foreign Currency (or
any currency unit), the principal amount of Securities is required to be
determined, the aggregate principal amount of such Securities shall be deemed
to be that amount of Dollars that could be obtained for such principal amount
on the basis of the spot rate of exchange for such Foreign Currency or such
currency unit as determined by the Company or by an authorized exchange rate
agent and evidenced to the Trustee by an Officers' Certificate as of the date
taking of such Act by the Holders of the requisite percentage in principal
amount of the Securities is evidenced to the Trustee. An exchange rate agent
may be authorized in advance or from time to time by the Company, and maybe
the Trustee or its Affiliate. Any such determination by the Company or by any
such exchange rate agent shall be conclusive and binding on all Holders, the
Company and the Trustee, and neither the Company nor any such exchange rate
agent shall be liable therefor in the absence of bad faith.
(h) If the Company shall solicit from the Holders of any
Registered Securities, any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders of Registered Securities entitled to give such request, demand,
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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 Registered
Securities 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 propor tion 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 Outstand ing Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, 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 the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Where this Indenture provides for notice to Holders of
Securities 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 Security 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 in such Securities and, if the Securities of such series are
listed on any stock exchange outside the United States, in any place at which
such Securities are listed on a securities exchange to the extent that such
securities exchange so requires, and mailed to such Persons whose names and
addresses as were previously filed with the Trustee, within the time
prescribed for giving such notice. In any case where notice
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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. In case by reason of
the suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be impracticable to publish
any notice to Holders of Bearer Securities as provided above, then such
publication in lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice. Neither failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of any
notice mailed to Holders of Registered Securities as provided above.
Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given or provided. In case by reason
of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice 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.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
This Indenture is subject to the Trust Indenture Act and if
any provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required under such Act to be a part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
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SECTION 110. Separability Clause.
In case any provision in this Indenture, any Security or any
Coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provi sions shall not in any way be affected
or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon,
express or implied, shall give to any Person, other than the parties hereto,
any Security Registrar, any paying agent and their successors hereunder and
the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and any Coupons shall be
governed by and con strued in accordance with the laws of the State of New
York applicable to agreements made or instruments entered into and, in each
case, performed in said state.
SECTION 113. Moneys of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds, and accounts held
by the Trustee hereunder in one currency (or unit thereof) from any monies,
funds or accounts in any other currencies (or units thereof), notwithstanding
any provision herein which would otherwise permit the Trustee to commingle
such amounts.
SECTION 114. Payment to be in Proper Currency.
The following provisions of this Section 114 shall apply to
the extent permitted by applicable law: In the case of any Security payable in
any particular currency or currency unit (the "Required Currency"), except as
otherwise provided herein, therein or in or pursuant to the related Board
Resolution or supplemental indenture or as contemplated by Section 301, the
obligation of the Company to make any payment of principal, premium or
interest thereon shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency or currency unit other
than the Required Currency, except to the extent that such tender or recovery
shall result in the Trustee timely holding the full amount of the Required
Currency then due and payable. If any such tender or recovery is made in other
than the Required Currency, the Trustee may, but shall not be obligated to,
take such actions as it considers appropriate to exchange such other currency
or currency unit for the Required Currency. The costs and risks of any such
exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount of the Required
Currency then due and payable and in no circum stances shall the Trustee be
liable therefor. The Company hereby
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waives any defense of payment based upon any such tender or recovery which is
not in the Required Currency, or which, when exchanged for the Required Currency
by the Trustee, is less than the full amount of Required Currency then due and
payable.
SECTION 115. Language of Notices.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture shall
be in the English language, except that, if the Company so elects, any
published notice may be in an official language of the country of publication.
SECTION 116. Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity
or Maturity of any Security shall be a Legal Holiday at any Place of Payment,
then (notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in this Indenture, any Security or Coupon that
specifically states that such provision shall apply in lieu of this Section)
payment need not be made at such Place of Payment on such date, but may be made
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity, and no interest shall accrue on the amount payable
on such date or at such time for the period from and after such Interest Payment
Date or Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. 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 or indenture supplemental hereto, 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. If temporary Securities of any series are
issued in global form as permitted by Section 304, 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 Secretary or an Assistant Secretary of the
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Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in Section 202.
Unless otherwise provided in or pursuant to this Indenture,
the Securities shall be issuable in registered form without Coupons and shall
not be issuable upon the exercise of warrants.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 610, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
FIRST SECURITY BANK, N.A.
as Trustee
By
--------------------------------
Authorized Signatory
SECTION 203. Securities in Global Form.
If Securities of 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 ex
changes. 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 pursuant to Section 303 or 304 with respect thereto.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a
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Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to a Security in global
form shall be in writing but need not be accompanied by or contained in an
Officers' Certificate and need not be accompanied by an Opinion of Counsel. Any
instructions by the Company with respect to a Security in global form shall be
in writing but need not comply with Section 314(e) of the Trust Indenture Act.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 304, 305, 306, 309, 403, 906,
1106, 1107 or 1203);
(3) the date or dates, or the method, if any, by which such
date or dates shall be determined, on which the principal (and premium, if
any) of the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method, if any, by which such rate or
rates are to be determined, the date or dates from which such interest shall
accrue, or the method, if any, by which such date or dates shall be
determined, the Interest Payment Dates, if any, on which such interest shall
be payable and the Regular Record Date, if any, for the interest payable on
any Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, and the basis upon
which interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the Person to whom any interest on any Registered
Securities of the series shall be payable if other than 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
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and the manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable if otherwise than upon presentation
and surrender of the coupons appertaining thereto as they severally mature;
(6) if in addition to or other than in Salt Lake City, the
place or places where the principal of (and premium, if any) and interest on
or any Additional Amounts with respect to the Securities of the series shall
be payable;
(7) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the period or periods within which or
the date or dates on which, the price or prices at which and the terms and
conditions upon which Securities of the series may be re deemed, in whole or
in part, at the option of the Company;
(8) the obligation, if any, or option of the Company to
redeem or purchase Securities of the series pursuant to any sinking fund or
analogous provisions 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, and any provisions for the
remarketing of such Securities so redeemed or purchased;
(9) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which any
of such Securities that are Bearer Securities shall be issuable if other than
the denomination of $5,000;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section
502 or the method by which such portion is to be determined;
(11) whether Bearer Securities of the series are to be
issuable and if so, whether Registered Securities are to be issuable and
whether the Bearer Securities are to be issuable with Coupons, without Coupons
or both, and any restrictions applicable to the offer, sale or delivery of the
Bearer Securities and the terms, if any, upon which Bearer Securities may be
exchanged for Registered Securities and vice versa;
(12) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(13) if Bearer Securities of the series are to be issuable,
whether interest in respect of any portion of a temporary Bearer Security in
global form (representing all of the Outstanding Bearer Securities of the
series) payable in respect of any Interest Payment Date prior
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to the exchange, if any, of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization with respect
to the portion of such temporary Bearer Security held for its account and, in
such event, the terms and conditions (including any certification requirements)
upon which any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest Payment
Date;
(14) the currency of denomination of the Securities of any
series, which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the ECU, and, if such currency of
denomination is a composite currency other than the ECU, the agency or
organization, if any, responsible for overseeing such composite currency;
(15) the currency or currencies in which payment of the
principal of (and premium, if any) and interest on or any Additional Amounts
with respect to the Securities will be made, and the currency or currencies
(in addition to Dollars), if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election of
each of the Holders thereof, may also be payable;
(16) if the amount of payments of principal of (and premium,
if any) or, interest on or any Additional Amounts with respect to the
Securities of the series may be determined with reference to an index based on
a currency or currencies other than that in which the Securities are
denominated or designated to be payable, the terms and conditions upon which
and the manner in which such amounts shall be determined and paid or payable;
(17) if the payments of principal of (and premium, if any)
or the interest on or any Additional Amounts with respect to the Securities of
the series are to be made in a Foreign Currency other than the Foreign
Currency in which such Securities are denominated, the manner in which the
exchange rate with respect to such payments shall be determined;
(18) any deletions from, modifications of or additions to
the Events of Default set forth in Section 501 or covenants of the Company set
forth in Article Ten pertaining to the Securities of the series;
(19) the form of the Securities and Coupons, if any, of the
series;
(20) whether the Securities of such series shall be issued
in whole or in part in global form, including Book-Entry Securities, and the
Depositary for such global Securities and, if so, (i) whether beneficial
owners of interests in any such global Security may exchange such interest for
Securities of the same series and of like tenor and of any authorized form and
denomi nation, and the circumstances under which any such exchanges may occur,
if other than in the manner specified in Section 305, and (ii) the name of the
Depositary or the U.S. Depositary, as the case may be, with respect to any
global Security;
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(21) the application, if any, of Section 403;
(22) if any of such Securities are to be issuable upon the
exercise of warrants, this shall be so established and (if established by
Board Resolution) so set forth, as well as the time, manner and place for such
Securities to be authenticated and delivered;
(23) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then the
form and terms of such certificates, documents or conditions;
(24) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security Registrar,
Paying Agent or Authenticating Agent with respect to such Securities; and
(25) any other terms of the series of Securities (which
terms shall not be inconsis tent with the provisions of this Indenture).
All Securities (including Coupons, if any) of any one series
shall be substantially identical except as to Currency of payments due
thereunder, denomination and the rate or rates of interest, if any, the method
or methods, if any, by which such rate or rates are to be determined and
Maturity, the date from which interest, if any, shall accrue and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth in
such Officers' Certificate or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the series of Securities are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the 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 the terms of the
series.
SECTION 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture,
the principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. The Securities of each
series shall be issuable in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series shall
be issuable in denominations of $1,000, if Registered Securities, in
denominations of $5,000, if Bearer Securities, and, in the case of Registered
Securities, any integral multiple of the applicable denomination.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, one of its Vice Chairmen, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by
the signature of its Secretary or one of its Assistant Secretaries or its
Treasurer or one of its Assistant Treasurers. The Coupons, if any, shall be
executed on behalf of the Company by its Chairman of the Board, its President
or one of its Vice Presidents attested by its Secretary or any Assistant
Secretary or its Treasurer or one of its Assistant Treasurers. The signature
of any of these officers on the Securities (and Coupons, if any) may be manual
or facsimile.
Securities (and Coupons, if any) 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 (and Coupons, if any) or did not hold such
offices at the date of such Securities (and Coupons, if any).
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities (with or
without Coupons) 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. 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 Sections 315(a) through 315(d) of the Trust Indenture Act, shall be
fully protected in relying upon,
(i) an Opinion of Counsel stating to the effect that:
(a) the form or forms of such Securities and Coupons, if
any, have been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and Coupons, if any, have
been established in conformity with the provisions of this Indenture;
(c) the terms of the Securities and Coupons, if any, have
been established in accordance with the terms of this Indenture and all
conditions precedent provided for in the Indenture relating to the Trustee's
authentication and delivery of the Securities and Coupons, if any, will have
been complied with; and
(d) as to such other matters as the Trustee may reasonably
request; and
(ii) an Officers' Certificate stating that, all conditions
precedent to the authentication and delivery of such Securities and Coupons, if
any, appertaining thereto, have been
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complied with and to the best knowledge of the Persons executing such
certificate, no event which is, or after notice or lapse of time would become,
an Event of Default with respect to any of the Securities shall have occurred
and be continuing.
The Trustee shall have the right to decline to authenticate
and deliver such Securities if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken or if the Trustee in good faith by
its board of directors or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing Holders or
would adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency (or unit including a coin or currency) other
than that of the United States of America if the Trustee reasonably determines
that such Securities impose duties or obligations on the Trustee which the
Trustee is not able or reasonably willing to accept; provided that the
Trustee, upon a Company Request, will resign as Trustee with respect to
Securities of any series as to which such a determination is made, prior to
the issuance of such Securities, and will comply with the request of the
Company to execute and deliver a supplemental indenture appointing a succes
sor Trustee pursuant to Section 901.
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such
opinion and certificate, with appropriate modifications, shall be delivered at
or before the time of issuance of the first Security of such series.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such global Security
or Securities, (ii) shall be registered, if in registered form, in the name of
the Depositary for such Book-Entry Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) where such Depositary is The
Depository Trust Company, shall bear a legend substantially to the following
effect: "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
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary" or to such other effect as the Depositary and the Trustee may agree.
Each Depositary designated pursuant to Section 301 for a
Book-Entry Security in registered form must, at the time of its designation
and at all times while it serves as Depositary,
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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 Depositary is so registered. Each Depositary
shall enter into an agreement with the Trustee governing their respective duties
and rights with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication,
except that each Bearer Security, including any Bearer Security in global
form, shall be dated as of the date specified or contemplated by Section 301.
No Security or Coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of one of its authorized signatories, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Except as permitted by Section 306
or 307, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant Coupons then matured have been detached and cancelled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon receipt of a Company Order the Trustee
shall authenticate and deliver, temporary Securities 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. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of the same series and containing terms and
provisions that are identical to those of any temporary Securities, 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 1002 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 (accompa
nied 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
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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 301 with respect to the payment of interest on Bearer
Securities in temporary form.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency of the Company maintained pursuant to Section
1002 in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities as herein provided. In the
event that the Trustee shall not be the Security Registrar, it shall have the
right to examine the Security Register at all reasonable times. In the event
that the Trustee shall cease to be Security Registrar with respect to a series
of Securities, it shall have the right to examine the Security Register for
such series at all reasonable times.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency maintained pursuant
to Section 1002 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 bearing a number not contemporaneously outstanding and
containing identical terms and provisions.
At the option of the Holder, Registered Securities of any
series (except a Book-Entry Security representing all or a portion of the
Securities of such series) may be exchanged for other Registered Securities of
the same series, of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Registered
Securities to be exchanged at such office or agency. Registered Securities may
not be exchanged for Bearer Securities. 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.
At the option of the Holder, Bearer Securities of any 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
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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 accept able to the
Company and the Trustee in an amount equal to the face amount of such missing
Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, 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 a 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, shall 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 shall
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 ex changed in whole or in part for Securities in certificated
form, a Security in global form represent ing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 303, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is
not appointed by the Company within 90 days after the issuer receives such
notice or becomes aware of such ineligibility, the Company's election pursuant
to Section 301(20) 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
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Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver Securities of such
series in certificated form in an aggregate principal amount equal to the
principal amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
global Securities shall no longer be represented by such global Security or
Securities. 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 in certificated form and in an aggregate principal
amount equal to the principal amount of the Security or Securities in global
form representing such series in exchange for such Security or Securities in
global form.
If specified by the Company pursuant to Section 301 with
respect to a series of Securities, the Depositary for such series of
Securities may surrender a global Security 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 Depositary. Thereupon, the Company
shall execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like
tenor, of any authorized denomination as requested by such
Person in aggre gate principal amount equal to and in exchange
for such Person's beneficial interest in the global Security;
and
(ii) to such Depositary a new global security of like
tenor in a denomination equal to the difference, if any,
between the principal amount of the surrendered global
Security and the aggregate principal amount of certificated
Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company shall execute and the Trustee shall authenticate and
deliver Securities in certificated form in authorized denominations.
Upon the exchange of a global Security for Securities in
certificated form, such global Security shall be cancelled by the Trustee.
Unless expressly provided with respect to the Securities of any series that
such Security may be exchanged for Bearer Securities, Securities issued in
exchange for a Book-Entry Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the
Depositary for such Book-Entry Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
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Trustee. The Trustee shall deliver such Securities to the Persons in whose names
such Securities are so registered.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitling the Holders thereof to the same
benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required
by the Company or the Security Registrar) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed, by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
Except as otherwise provided in or pursuant to this
Indenture, the Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series for a period of 15 days
before the selection of any Securities of that series for redemption, or (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 with
written instruction for payment consistent with the provisions of this
Indenture or (iv) to issue, register the transfer of or exchange any Security
which, in accordance with its terms, has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or Security with a mutilated
Coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security with Coupons corresponding to the Coupons, if any, appertaining
to the surrendered Security of the same series and of like tenor and principal
amount
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and bearing a number not contemporaneously outstanding with Coupons
corresponding to the Coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or Security with a destroyed, lost or stolen Coupon and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding with
Coupons corresponding to the Coupons, if any, appertaining to the destroyed,
lost or stolen Security.
Notwithstanding the foregoing provisions of this Section
306, 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 or any Additional Amounts with respect to any Bearer Securities
shall, except as otherwise provided in Section l002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
and any Additional Amounts with respect to such interest 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 Coupons, 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, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
SECTION 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.
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Unless otherwise provided as contemplated by Section 301,
interest on and any Additional Amounts with respect to 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. Unless otherwise provided in or pursuant
to this Indenture, in case a Bearer Security is surrendered in exchange for a
Registered Security after the close of business (at an Office or Agency for such
Security) on any Regular Record Date therefor and before the opening of business
(at such Office or Agency) on the next succeeding Interest Payment Date
therefore, such Bearer Security shall be surrendered without the Coupon relating
to such Interest Payment Date and interest shall not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such Coupon when due
in accordance with the provisions of this Indenture.
Any interest on and any Additional Amounts with respect to
any Registered Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case,
as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
Money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit 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 is provided in this Clause (1). 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 Registered Securities of such Series at his address as it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the expense
of the Company, cause a similar notice to be published at least once in an
Authorized Newspaper of general circulation in the Borough of Manhattan, The
City of New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause
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(2). In case a Bearer Security is surrendered at the Office or
Agency for such Security in exchange for a Registered Security after the close
of business at such Office or Agency on any Special Record Date and before the
opening of business at such Office or Agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the Coupon relating to such proposed date of payment and Defaulted Interest
shall not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the
Trustee.
At the option of the Company, interest on Registered
Securities of any series that bear interest may be paid (i) by mailing a check
to the address of the Person entitled thereto as such address shall appear in
the Security Register or (ii) by wire transfer to an account maintained by the
person entitled thereto as specified in the applicable Security Register.
Notwithstanding the above, except as otherwise specified
with respect to a series of Securities in accordance with the provisions of
Section 301, a Holder of $10,000,000 or more in aggregate principal amount of
Securities of the same series having the same Interest Payment Date shall,
upon written request received by the Trustee prior to the Regular Record Date
in respect of an interest payment, or the date which is 15 days before the
Stated Maturity or date of redemption of the principal of (and premium, if
any, on) the Securities, as the case may be, be entitled to receive payments
of principal of (and premium, if any) and interest by wire transfer to an
account maintained by such Holder with a bank located in the United States;
provided, however, that no payment of principal (and premium, if any) will be
made without prior present ment and surrender of the Securities.
Subject to the foregoing provisions of this Section, each
Security or Coupon, if any, delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security or Coupon,
if any, shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security or Coupon.
SECTION 308. Persons Deemed Owners.
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Prior to due presentment of a 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 (and premium, if any) and
(subject to Section 307) interest on, and any Additional Amounts with respect
to, 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.
No holder of any beneficial interest in any global Security
held on its behalf by the Depositary shall have any rights under this
Indenture with respect to such global Security, and such Depositary may be
treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such global Security for all purposes whatsoever. None
of the Company, the Trustee, any Paying Agent or the Security Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interest of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interest.
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.
No holder of any beneficial interest in any global Security
held on its behalf by the Depositary shall have any rights under this
Indenture with respect to such global Security, and such Depositary may be
treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such global Security for all purposes whatsoever. None
of the Company, the Trustee, any Paying Agent or the Security Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interest of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interest.
SECTION 309. Cancellation.
All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities and Coupons so
delivered shall be promptly cancelled by the Trustee. No Securities or Coupons
shall be authenticated in lieu of or in exchange for any
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Securities or Coupons cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities and Coupons held by the
Trustee shall be destroyed by the Trustee, unless by a Company Order the Company
directs their return to it, and a certificate evidencing such destruction shall
be delivered to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series and replacement of lost, stolen or mutilated Securities of such series
herein expressly provided for) and any Coupons appertaining thereto, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to
such series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining
thereto (other than (i) Coupons appertaining to Bearer
Securities of such series 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 305, (ii) Securities of such series and
Coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii)
Coupons appertaining to Bearer Securities of such series
called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as
provided in Section 1106 and (iv) Securities of such series
and Coupons for whose payment Money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities and Coupons of such
series not theretofore delivered to the Trustee for
cancellation
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(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 deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities and Coupons of such series not theretofore delivered to the Trustee
for cancellation, for principal of (and premium, if any) and interest on, and
any Additional Amounts with respect to such Securities and Coupons to the date
of such deposit (in the case of Securities and Coupons of such series 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 have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested
to do so with respect to Securities of such series as to which it is Trustee
and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 605
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 402 and the last paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all Money and Government Obligations deposited with the Trustee pursuant
to Sections 401 and 403 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and Coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), interest and Additional Amounts for
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whose payment such Money and Government Obligations have been deposited with or
received by the Trustee; but such Money and Government Obligations need not be
segregated from other funds except to the extent required by law.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of Any
Series.
If this Section is specified, as contemplated by Section
301, to be applicable to Securities and Coupons, if any, of any series, at the
Company's option, either
(a) the Company will be deemed to have been Discharged
(as defined below) from its obligations with respect to Securities and Coupons,
if any, of such series or
(b) the Company will cease to be under any obligation to
comply with any term, provision or condition set forth in (i) Article Eight and
Section 1006 or (ii) the terms, provisions or conditions of such series
specified pursuant to Section 301 (provided, however, that the Company may not
cease to comply with any obligations as to which it may not be Discharged
pursuant to the definition of "Discharged"), if, in the case of (a) and (b),
with respect to the Securities and Coupons, if any, of such series on the 91st
day after the applicable conditions set forth below in (x) and either (y) or (z)
have been satisfied:
(x) (1) the Company has paid or caused to be
paid all other sums payable with respect to the Outstanding
Securities and Coupons, if any, of such series (in addition
to any required under (y) or (z)); and
(2) the Company has delivered to the
Trustee an Officers' Certifi cate and an Opinion of Counsel,
each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of the entire
indebtedness on all Outstanding Securities and Coupons, if
any, of any such series have been complied with;
(y)(1) the Company shall have deposited or
caused to be deposited irrevocably with the Trustee as a
trust fund specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the
Securities and Coupons, if any, of such series (i) an amount
(in such currency or currency unit in which the Outstanding
Securities and Coupons, if any, of such series are payable)
or (ii) U.S. Government Obligations (as defined below) or,
in the case of Securities and Coupons, if any, denominated
in a Foreign Currency, Foreign Government Securities (as
defined below) denominated in such Foreign Currency, which
through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not
later than the due date of any payment of principal
(including any premium), and interest, if any, under the
Securities and Coupons, if any, of such series, Money in an
amount or (iii) a combination of (i) and (ii) sufficient (in
the opinion with respect to (ii) and (iii) of a nationally
recognized
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firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) to pay and
discharge each installment of principal of (including any
premium), and interest, if any, on, and any Additional Amounts
with respect to the Outstanding Securities and Coupons, if
any, of such series on the dates such installments of interest
or principal are due;
(2) (i) no Event of Default or event
(including such deposit) which with notice or lapse of time
or both would become an Event of Default shall have occurred
and be continuing on the date of such deposit, (ii) no Event
of Default as defined in clause (6) or (7) of Section 501,
or event which with notice or lapse of time or both would
become an Event of Default under either such clause, shall
have occurred within 90 days after the date of such deposit
and (iii) such deposit and the related intended consequence
under (a) or (b) will not result in any default or event of
default under any material indenture, agreement or other
instrument binding upon the Company or any Subsidiary or any
of their properties; and
(3) the Company shall have delivered to the
Trustee
(A) an Opinion of Counsel to the effect that
Holders of the Securities and Coupons, if any, of such series
will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its option
under this Section 403 and will be subject to Federal income
tax in the same amount, in the same manner and at the same
times as would have been the case if such option had not been
exercised; and
(B) if the Securities of such series are then
listed on any exchange, an Opinion of Counsel that the
Securities of such series shall not be delisted as a result
of the exercise of this option;
(z) the Company has properly fulfilled such
other means of satisfaction and discharge as is specified,
as contemplated by Section 301, to be applicable to the
Securities and Coupons, if any, of such series.
Any deposits with the Trustee referred to in clause (y)(1)
above shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities and Coupons, if any, of such series are to be redeemed prior to their
Stated Maturity, whether pursuant to any mandatory redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement will provide therefor and the Company will make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
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"Discharged" means that the Company will be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Securities and Coupons, if any, of the series as to which this
Section is specified as applicable as aforesaid and to have satisfied all the
obligations under this Indenture relating to the Securities and Coupons, if any,
of such series (and the Trustee, at the expense of the Company, will execute
proper instruments acknowledging the same), except (A) the rights of Holders
thereof to receive, from the trust fund described in clause (y)(1) above,
payments of the principal of, premium and the interest, if any, on such
Securities and Coupons, if any, when such payments are due, (B) the Company's
obligations with respect to such Securities and Coupons, if any, under Sections
305 and 306 (insofar as applicable to Securities of such series), 402, 1002 and
1003 (last paragraph only) and the Company's obligations to the Trustee under
Sections 605 and 606 and (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, will survive such discharge. The Company will
reimburse the trust fund for any loss suffered by it as a result of any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or Foreign Government Securities, as the case may be, or any
principal, premium or interest paid on such Obligations, and, subject to the
provisions of Section 605, will indemnify the Trustee against any claims made
against the Trustee in connection with any such loss.
"Foreign Government Securities" as used in Section 403
means, with respect to Securities and Coupons, if any, of any series that are
denominated in a Foreign Currency, securities that are (i) direct obligations
of the government that issued such currency for the payment of which
obligations 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 such government (the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation of such government) which, in either
case under clauses (i) or (ii), are not callable or redeemable at the option
of the issuer thereof and will also include a depository receipt issued by a
bank or trust company as custodian with respect to any such Foreign Government
Obligation or a specified payment of interest on or principal of any such
Foreign 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 Foreign Government Obligations or the specific
payment of interest on or principal of the Foreign Government Obligation
evidenced by such depository receipt.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America 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 of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of
America, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof and will also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specified payment of interest on
or principal of any such U.S. Government Obligation held by such custodian for
the account of the holder of a depository
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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
U.S. Government Obligations or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series, and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture or the Securities (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or breach 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 that
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;
or
(5) if any 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 indebted ness of the Company for money borrowed,
whether such indebtedness now exists or shall hereafter be created, shall
happen and shall result in such indebtedness in principal amount in
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excess of $10,000,000 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, or such indebtedness shall not have been
discharged, within a period of 30 days after 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 principal amount of the Out
standing Securities of such series, a written notice specifying such event of
default and requiring the Company to cause such acceleration to be rescinded or
annulled or to cause such indebtedness to be discharged and stating that such
notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days, or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstand ing occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 33-1/3% in principal amount
of the Outstanding Securities of that series may declare the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all of the
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Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the Money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of any interest on
and Additional Amounts with respect to all Securities of
that series and any Coupons appertaining thereto;
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due
otherwise than by such declaration of acceleration and
interest thereon and any Additional Amounts with respect
thereto at the rate or rates prescribed therefor in such
Securities;
(C) to the extent that payment of such interest
or Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts at the
rate or rates prescribed therefor in such Securities; and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (and premium, if any,)
and interest on, and any Additional Amounts with respect to Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any Security or Coupon,
if any, when such interest or
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Additional Amounts become 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 the Trustee, for the
benefit of the Holders of such Securities or Coupons, if any, the whole amount
of Money then due and payable on such Securities and any Coupons for principal
(and premium, if any) and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
pre mium, if any) and on any overdue interest and Additional Amounts, at the
rate or rates prescribed therefor in such Securities or Coupons, if any, and, in
addition thereto, such further amount of Money as shall be sufficient to cover
the costs and expenses of collection, including the reason able compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay the Money and is required to pay
the Trustee pursuant to the preceding paragraph forthwith upon the demand of
the Trustee, the Trustee in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the Money so due and
unpaid and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
or Coupons, if any, and collect the Money adjudged or decreed to be paid in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities or Coupons, if any, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series or Coupons, if any, by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of any overdue principal,
premium, interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
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(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid in
respect of the Securities and any Coupons appertaining thereto and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
or counsel) and of the Holders of Securities or any Coupons allowed in such
judicial proceeding; and
(ii) to collect and receive any Monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 605.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or any Coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or Coupons or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder of a Security or any Coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or any
of the Securities or Coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or Coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery or judgment shall, after provision for the payment of
the reasonable compensation, expense, disbursements and advances of the
Trustee, its agents and counsel, and for any other amounts due to the Trustee
under Section 605, be for the ratable benefit of the Holders of the Securities
or any Coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any Money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such Money on account of principal
(or premium, if any) or interest or Additional Amounts,
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upon presentation of the Securities or Coupons, or both, as the case may be, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 605; and
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), interest and Additional Amounts on the
Securities and any Coupons in respect of which or for the benefit of which
such Money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities and
any Coupons for principal (and premium, if any) and interest and Additional
Amounts, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any Coupons
appertaining thereto shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series; it
being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other of such Holders or Holders of Securities of any other
series, 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.
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SECTION 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts with
respect to such Security or payment of such Coupon, as the case may be, on the
respective Stated Maturity or Maturities therefor specified in such Security
or Coupon (or, in the case of redemption, on the Redemption Date or, in the
case of repayment at the option of such Holder if provided in or pursuant to
this Indenture, on the date such repayment is due) and to institute suit for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and each such Holder
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and each such Holder shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or Coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by such Holder, as the case may be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series and any Coupons appertaining thereto,
provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(3) such direction is not unduly prejudicial to the rights
of the other Holders of Securities of such series not joining in such action.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series and any Coupons waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series or any Coupons appertaining
thereto, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such
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law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Judgment Currency.
The following provisions of this Section 515 shall apply to
the extent permissible under applicable law: Judgments in respect of any
obligations of the Company under any Securities or Coupons, if any, of any
series shall be rendered in the currency or currency unit in which such
Securities or Coupons are payable. If for the purpose of obtaining a judgment in
any court with respect to any obligation of the Company hereunder or under any
Security or Coupon, it shall become necessary to convert into any other currency
or currency unit any amount in the currency or currency unit due hereunder or
under such Security or Coupon, then such conversion shall be made at the
Conversion Rate (as defined below) as in effect on the date the Company shall
make payment to any person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than the date payment is
made and there shall occur a change between such Conversion Rate and the
Conversion Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is the amount in such other currency or currency unit which, when converted
at the Conversion Rate as in effect on the date of payment or distribution, is
the amount then due hereunder or under such Security or Coupon. Any amount due
from the Company under this Section 515 shall be due as a separate debt and is
not to be affected by or merged into any judgment being obtained for any other
sums due hereunder or in respect of any Security or Coupon so that in any event
the Company's obligations hereunder or under such Security or Coupon will be
effectively maintained as obligations in such currency or currency unit. In no
event, however, shall the Company be required to pay more in the currency or
currency unit due hereunder or under such Security or Coupon at the Conversion
Rate as in effect when payment is made than the amount of currency or currency
unit stated to be due hereunder or under such Security or Coupon.
For purposes of this Section 515, "Conversion Rate" shall
mean the spot rate as determined by the Company at which in accordance with
normal banking procedures the currency or currency unit into which an amount
due hereunder or under any Security or Coupon is to be converted could be
purchased with the currency or currency unit due hereunder or under any
Security or Coupon, at the option of the Company from major banks located in
New York, London or any other principal market for such purchased currency or
currency unit.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain 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 resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery pursuant
to Section 303 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) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
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(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(h) The Trustee shall not be 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 any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 602. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustee makes no representations
as to the validity or the sufficiency of this Indenture or of the Securities
or the Coupons, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 603. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Trustee or the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities or Coupons and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 604. 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 with the Company.
SECTION 605. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the Trustee's
negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending themselves against any claim or liability
in connection with the exercise or performance of any of their powers or
duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities of any series upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of,
and premium or interest on or any Additional Amounts with respect to
Securities or any Coupons appertaining thereto.
The obligations of the Company under this Section 605 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture.
SECTION 606. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee
pursuant to Section 607.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 607 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with
Section 310(b) of the Trust Indenture Act after written
request therefor by the Company or by any Holder of a
Security of such series who has been a bona fide Holder of a
Security of such series 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 such Holder, or
(3) the Trustee shall become incapable of
acting or shall be ad judged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or the Securities
of such series, or (ii) any Holder of a Security 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 removal of the Trustee with
respect to all Securities of such series and the appointment of a
successor Trustee or Trustees.
(e) if the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 607. 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
607, 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 607, any Holder of a Security 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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(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided in Section 105. 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 607. 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 so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties hereunder of the retiring
Trustee; but, on the request of the Company or the successor Trustee, all
property and Money held by 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, subject nevertheless to its claim, if
any, provided for in Section 605.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supple mental 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 that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the
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Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and Money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under the Trust Indenture Act.
SECTION 608. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a
Corporation permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the
Trust Indenture Act) of at least $50,000,000. 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 610. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents
acceptable to the Company with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original issue, exchange,
registration of transfer, partial redemption or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obliga-
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tory for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certifi cate 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 provided in or pursuant to this Indenture, shall at all times
be a corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
be the successor of such Authenticating Agent hereunder, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such ap pointment at least once in an Authorized
Newspaper in the place where such successor Authenti cating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time
to time reasonable compensation for its services under this Section. If the
Trustee makes such payments, it shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 605.
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The provisions of Sections 308, 602 and 603 shall be
applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one
or more series of Securities 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 in
the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
FIRST SECURITY BANK, N.A.
As Trustee
By
------------------------------
As Authenticating Agent
By
------------------------------
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not be accompanied by or contained in an Officers' Certificate by the
Company), shall appoint in accordance with this Section an Authenticating
Agent having an office in a Place of Payment designated by the Company with
respect to such series of Securities.
SECTION 611. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities of any series, mail to all Holders of
Securities of that series entitled to receive reports pursuant to Section 703,
notice of all defaults with respect to that series known to the Trustee, unless
such defaults have been cured before the giving of such notice; provided,
however, that, except in the case of default in the payment of the principal of,
premium, if any, or interest on any of the Securities of such series or in the
making of any sinking fund payment with respect to such series, the Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of Securities
of such series. For the purpose of this Section the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture
Act, the Company shall furnish or cause to be furnished to the Trustee
(a) semi-annually with respect to Securities of each series
on May 15 and November 15 of each year or upon such other dates as are set
forth in or pursuant to the Board Resolution or indenture supplemental hereto
authorizing such series, a list, in each case in such form as the Trustee may
reasonably require, of the names and addresses of Holders as of not more than
15 days prior to the applicable date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company, the Trustee, any Paying Agent or any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section
312 of the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after December 31 of each year commencing
with the first December 31 following the first issuance of Securities pursuant
to Section 301, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act,
a brief report dated as of such December 31 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later of
the immediately preceding December 31 and the date of this Indenture.
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(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act. The Company will notify the Trustee when any Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 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; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance
by the Company, as the case may be, with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations;
(3) furnish to the Trustee, not less often than annually, a
brief 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 the conditions and covenants under this
Indenture; and
(4) transmit 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 paragraphs (1) and (2) of this Section as
may be required by the rules and regulations prescribed from time to time by the
Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER OR SALE
SECTION 801. Consolidation, Merger or Sale.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or
into any other Person or Persons (whether or not affiliated with the Company),
or successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Company as an entirety or
substantially as an entirety, to any other Person (whether or not affiliated
with the Company); provided, however, that:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a Corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental
hereto, executed and delivered by the successor Person to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
any premium, if any, and interest on and any Additional Amounts with respect
to all the Securities and the performance of every other covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no
event which, after notice or lapse of time, would become an Event of Default,
shall have occurred and be continuing; and
(c) each of the Company and the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such successor Person had been
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named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture, the Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(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;
(3) to add any additional Events of Default with respect to
all or any series of Securities;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons or to provide for uncertificated
(commonly known as "book entry") Securities on terms satisfactory in substance
to the Trustee;
(5) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of principal
of, any premium or interest on or any Additional Amounts with respect to
Securities, to permit Registered Securities to be exchanged for Bearer
Securities, to permit Bearer Securities to be exchanged for Bearer Securities
of other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided any such action shall not aversely
affect the interests of the Holders of Securities of any series or any Coupons
appertaining thereto in any material respect;
(6) 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 Outstand-
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ing of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
(7) to secure the Securities;
(8) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by Sections 201 and
301;
(9) 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 administra-
tion of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 607(b);
(10) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States of America (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;
(11) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any series or
any Coupons appertain ing thereto in any material respect;
(12) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of Securities, as herein set forth; or
(13) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Article Four; provided
that any such action shall not aversely affect the interests of any Holder of
a Security of such series and any Coupons appertaining thereto or any other
Security or Coupon in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of (i) the Holders of not less than a
majority in principal amount of the Outstanding Securities, or (ii) in case less
than all of the several series of Securities are affected by such addition,
change, elimination or modification, the Holders of not less than a majority in
principal amount of each series so affected by such supplemental indenture
voting as a single class, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or inden-
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tures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on any Additional Amounts with respect
to, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any Additional Amounts with respect thereto, or any
premium payable upon the redemption thereof or otherwise, or reduce the amount
of the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect the right of repayment at the option of any Holder as
contemplated by Article Thirteen, or change the Place of Payment, or change
the coin or currency in which the principal of, any premium or the interest
on, or any Additional Amounts with respect to, any Security is payable, or
impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date or, in the case of repayment at the option of the
Holder, on or after the date for repayment), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for
in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in Section 1002,
or
(4) modify any of the provisions of this Section 902,
Section 513, or Section 1007, except to increase any such percentage or to
provide with respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the consent
of the Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made pursuant to
Section 301 without the consent of any Holder) or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 607(b) and 901(9).
For the purposes of this Section 902, if the Securities of any
series are issuable upon the exercise of warrants, any holder of an unexercised
and unexpired warrant with respect
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to such series shall not be deemed to be a Holder of Outstanding Securities of
such series in the amount issuable upon the exercise of such warrants.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and 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 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then
in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities, including any Coupons, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any Coupons of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and
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authenticated and delivered by the Trustee in exchange for Outstanding
Securities including any Coupons of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest and Additional
Amounts.
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 (and premium, if any) and interest on and any Additional Amounts
with respect to the Securities of that series in accordance with the terms of
the Securities and this Indenture.
The interest on Securities with Coupons appertaining thereto
shall be payable only upon presentation and surrender of the several Coupons
for such interest installments as are evidenced thereby as they severally
mature. 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.
SECTION 1002. 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 and Coupons, if any 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 an office or agency,
(A) subject to any laws or regulations applicable thereto, 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 The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited, the Luxembourg Stock Exchange or any other 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 London, Luxembourg or 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 (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States, where Securities of that series may be surrendered for exchange
and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in
the location, of any such office or agency. If at any time the Company shall
fail to maintain any
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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, except that Bearer
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment at the place specified for the purpose with respect
to such Securities as provided in or pursuant to this Indenture, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
Except as otherwise provided in or pursuant to this
Indenture, no payment of principal 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 interest on or any Additional Amounts with respect to any
such Bearer Security shall be made at the office of the Company's Paying Agent
in Salt Lake City, or such place as the Company may designate if (but only if)
payment in Dollars of the full amount of such principal, interest or
Additional Amounts, 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 provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each
series Salt Lake City, and initially appoints the office or agency of the
Corporate Trust Office of the Trustee for such purpose. Pursuant to Section
301(6) of this Indenture, the Company may subsequently appoint a place or
places in Salt Lake City where such Securities may be payable.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it shall, on or before each due date
of the principal of (and premium, if any) or interest on or any Additional
Amounts with respect to any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum of Money
sufficient to pay the principal (and premium, if any), interest or Additional
Amounts so becom-
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ing due until such sums shall be paid to such Persons or otherwise disposed of
as herein provided and shall promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities, it shall, on or prior to (but in the case of
payments to be made at a Place of Payment outside of the United States, its
territories, possessions and areas subject to its jurisdiction, at least one
New York Business Day before) each due date of the principal of, any premium
or interest on or any Additional Amounts with respect to any Securities of
such series, deposit with any Paying Agent a sum of Money sufficient to pay
the principal or any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto,
and (unless such Paying Agent is the Trustee) the Company shall promptly
notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on or any Additional Amounts
with respect to 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 (and premium, if any) or interest on or any Additional
Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which 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 the principal of (and
premium, if any) or interest on or any Additional Amounts with respect to any
Security of any series and remaining unclaimed for 2
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years after such principal (and premium, if any) or interest or Additional
Amounts shall have 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 Money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series 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 or
mailing nor shall it be later than 2 years after such principal and any premium
or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such Money then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If any Securities of a series provide for the payment of
Additional Amounts, the Company agrees to pay to the Holder of any such
Security or any Coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of,
any Security of any series or any Coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed
to include mention of the payment of Additional Amounts provided by the terms
of such series established hereby or pursuant hereto to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this
Indenture, if the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with
respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of or
interest on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of such series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such
payments to such Holders of Securities or Coupons and the Company agrees to
pay to the
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Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material respect to
the Holders.
SECTION 1006. Limitation on Liens.
Except as hereinafter in this Section 1006 expressly
permitted and as permitted by Section 801, so long as any of the Securities
remain Outstanding, the Company will not at any time directly or indirectly
create, assume or suffer to exist, and will not cause, suffer or permit any
Subsidiary to create, assume or suffer to exist, otherwise than in favor of
the Company or a Subsidiary, any mortgage, pledge, lien, encumbrance of or
upon or security interest (collectively, "Liens") upon any of its properties
or assets, real, personal or mixed, whether owned at the date of this
Indenture or thereafter acquired, or of or upon, any income or profits
therefrom, without making effective provision, and the Company covenants that
in any such case it will make or cause to be made effective provision, whereby
the Securities then or thereafter Outstanding shall be secured by such Liens
equally and ratably with any and all other obligations and indebtedness
thereby secured, so long as any such other obligations or indebtedness shall
be so secured.
Nothing in this Section 1006 shall be construed to prevent
the Company or any Subsidiary from creating, assuming or suffering to exist
Liens of the following character, to all of which the provisions of the first
paragraph of this Section 1006 shall not be applicable:
(a) Liens existing as of the date of this Indenture;
(b) Any purchase money mortgage or Lien created to secure
all or part of the purchase price of any property (or to secure a loan made to
the Company or any Subsidiary to enable it to acquire the property described
in such mortgage or in any applicable security agreement); provided that such
Lien shall extend only to the property so acquired, improvements thereon,
replacements thereof and the income or profits therefrom;
(c) Liens on any property at the time of the acquisition
thereof, whether or not assumed by the Company or a Subsidiary; provided that
such Lien shall extend only to the
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property so acquired, improvements thereon, replacements thereof and the income
or profits therefrom;
(d) Liens on any property or any contract for the sale of
any product or service, or any rights thereunder or any proceeds therefrom,
acquired or constructed by the Company or a Subsidiary, and created not later
than twelve months after (i) such acquisition or completion of such
construction, or (ii) commencement of operation of such property, whichever is
later; provided that such Lien shall extend only to the property so acquired
or constructed, improvements thereon, replacements thereof and the income or
profits therefrom;
(e) Liens on the properties or assets, real, personal or
mixed, of a Subsidiary, or of or upon or in any income or profits therefrom,
which is outstanding at the time such Subsidiary becomes a Subsidiary;
(f) Liens created or assumed by the Company or a Subsidiary
on coal, geother mal, oil, natural gas, inert gas, other hydrocarbon or
mineral properties owned or leased by the Company or a Subsidiary to secure
loans to the Company or a Subsidiary for the purpose of developing such
properties;
(g) Liens on any investment of the Company or a Subsidiary
in any Person other than a Subsidiary or any security representing any
investment of the Company or a Subsidiary; for the purposes of this Clause
(g), "investment" means any equity investment in any Person, any obligation of
any Person for money borrowed or for the deferred purchase price of property
which is owed to the Company or a Subsidiary, as the case may be, and any
amount advanced to any person by the Company or any Subsidiary, excluding,
however, current accounts payable other than for cash advances;
(h) Any Lien not otherwise permitted by this Section 1006
if, after giving effect to the creation or assumption of the proposed
mortgage, pledge, lien, encumbrance or security interest the sum of (i) all
indebtedness of the Company and its Subsidiaries secured by Liens not
otherwise permitted by this Section 1006, and (ii) to the extent not included
in (i) above, all Attributable Debt of the Company and its Subsidiaries does
not exceed 10% of Consolidated Capitalization;
(i) Any refunding or extension of maturity, in whole or in
part, of any obligation or indebtedness secured by any Lien created, existing
or assumed in accordance with the provisions of Clauses (a) through (h) above,
inclusive, provided that the principal amount of the obligation or
indebtedness secured by such refunding or extended Liens shall not exceed the
principal amount of the obligation or indebtedness to be refunded or extended
outstanding at the time of such refunding or extension, together with related
financing costs, and that such refunding or extended Liens shall be limited in
lien to the same property that secured the obligation or in debtedness
refunded or extended, and property substituted therefor and property
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acquired after the date thereof and subject to the lien thereof, in accordance
with the provisions of such refunding or extension;
(j) Liens on any office equipment or data processing
equipment (including, without limitation, computer and computer peripheral
equipment) or any motor vehicles, tractors or trailers;
(k) Liens of or upon or in current assets of the Company or
a Subsidiary, determined in accordance with GAAP, created or assumed to secure
indebtedness incurred in the ordinary course of business;
(l) Mechanics' or materialmen's liens; any lien or charge
arising by reason of pledges or deposits to secure payment of or to permit
participation in workmen's compensation, unemployment insurance, old age
pensions or other Social Security or other insurance or to permit
self-insurance; good faith deposits in connection with tenders or leases of
real estate, bids or contracts or in connection with the financing of the
acquisition or construction of property to be used in the business of the
Company or a Subsidiary; deposits to secure public or statutory obligations;
deposits to secure or in lieu of surety, stay or appeal bonds; deposits as
security for the payment of taxes or assessments or other similar charges;
judgment liens against the Company or any Subsidiary thereof in an aggregate
amount not in excess $5,000,000, or any such judgment lien so long as the
finality of such judgment is being contested and execution thereon is stayed
and which has been appealed and secured, if necessary, by the filing of an
appeal bond; and liens for taxes or assessments for the current year or which
are not due or which remain payable without penalty or which are being
contested in good faith and against which an adequate reserve has been
established;
(m) Any lien arising by reason of deposits with or the
giving of any form of security to any governmental agency or any body created
or approved by law or governmental regulation for any purpose at any time in
connection with the financing of the acquisition or construction of property
to be used in the business of the Company or a Subsidiary, or as required by
law or governmental regulation as a condition to the transaction of any
business or the exercise of any privilege or license, or to permit the
maintenance of self-insurance or participation in any fund for liability on
any insurance risks or in connection with workmen's compensation,
unemployment insurance, old age pensions or other social security or to share
in the privileges or benefits required for companies participating in such
arrangements;
(n) Liens which are payable, both with respect to principal
and interest, solely out of the proceeds of natural gas, oil, coal, geothermal
resources, inert gas, hydrocarbons or minerals to be produced from the
property subject thereto and to be sold or delivered by the Company or a
Subsidiary;
(o) Liens to secure indebtedness incurred to finance
advances made by the Company or any Subsidiary to any third party for the
purpose of financing oil, natural gas,
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hydrocarbon, inert gas or other mineral exploration or development, provided
that such liens shall extend only to the receivables of the Company or such
Subsidiary in respect of such advances;
(p) Any rights reserved in others to take or reserve any
part of the natural gas, oil, coal, geothermal resources, inert gas, other
hydrocarbons or mineral produced at any time on any property of the Company or
a Subsidiary;
(q) Any rights reserved to or vested in, or any obligations
or duties to, any person, firm, corporation or governmental authority by the
terms of any franchise, grant, lease, license, easement or permit or by any
provision of law with respect to any property of the Company or a Subsidiary.
(r) Leases (whether pursuant to Sale and Leaseback
Transactions or otherwise) now or hereafter existing and any renewals or
extensions thereof;
(s) Liens upon the underlying interests in property covered
by any lease, contract, easement or right-of-way existing at the time of the
acquisition thereof; easements or similar encumbrances, the existence of which
does not materially impair the use of the property subject thereto for the
purposes for which it was acquired; liens upon rights-of-way for pipeline or
dis tribution plant purposes and undetermined liens and charges incidental to
construction or maintenance; or defects and irregularities in the titles to
any property (including right-of-way) which are not material to the business
of the Company and its Subsidiaries considered as a whole;
(t) The lien reserved in leases for rent and for compliance
with the terms of the lease in the case of leasehold estates;
(u) Zoning laws and ordinances; and
(v) Liens which secure indebtedness of a Subsidiary to the
Company or another Subsidiary.
If at anytime the Company or any Subsidiary shall create or
assume any Lien to which the covenant in the first paragraph of this Section
1006 is applicable, the Company will promptly deliver to the Trustee an
Officers' Certificate, stating that such covenant has been complied with, and
an Opinion of Counsel, stating that in his opinion such covenant has been
complied with and that any instruments executed by the Company or any
Subsidiary in the performance of such covenant complied with the requirements
thereof.
In the event that the Company or any Subsidiary shall
hereafter secure the Securities equally and ratably with any other obligation
or indebtedness pursuant to the provisions of this Section 1006, the Trustee
is hereby authorized to enter into an indenture supplement
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al hereto and to take such action, if any, as it may deem advisable to enable it
to enforce effectively the rights of the Holders of the Securities so secured,
equally and ratably with such other obligation or indebtedness.
The Trustee may accept an Officers' Certificate and Opinion
of Counsel as conclusive evidence that any such supplemental indenture or
steps taken to secure the Securities equally and ratably comply with the
provisions of this Section 1006.
SECTION 1007. Waiver of Covenant.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Article Eight and Sections 1005
and 1006, if before the time for such compliance the Holders of (i) a majority
in principal amount of the Outstanding Securities or (ii) in case less than all
of the several series of Securities then Outstanding are affected by the
omission, at least a majority in principal amount of the Outstanding Securities
of each series so affected voting as a single class shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 1008. Statements as to Compliance; Notice of Certain Defaults.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company stating that
(1) a review of the activities of the Company during such
year and of performance under this Indenture has been made under his or her
supervision, and
(2) to the best of his or her knowledge, based on such
review, (a) the Company has complied with all the conditions and covenants
imposed on it under this Indenture throughout such year, or, if there has been
a default in the fulfillment of any such condition or covenant, specifying
each such default known to him or her and the nature and status thereof, and
(b) no event has occurred and it continuing which is, or after notice or lapse
of time or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him and the
nature and status thereof.
(b) The Company shall deliver to the Trustee, within five
days after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. 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 or contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
(including Coupons, if any) shall be evidenced by a Board Resolution. In case of
any redemption at the election of the Company of all or less than all of the
Securities (including 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 and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities (including Coupons, if
any) prior to the expiration of any restriction on such redemption provided in
the terms of such Securities and Coupons, if any, or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities (including Coupons, if any) of
any series with the same terms are to be redeemed, the particular Securities
(including Coupons, if any) to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities (including Coupons, if any) of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomina tion 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 (including Coupons, if any) selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities
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redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given not less than 30 nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified in the Securities to be redeemed, to each Holder of Securities to be
redeemed, as provided in Section 105.
Each such notice of redemption shall specify the Redemption
Date, the Redemption Price, the Place or Places of Payment, the CUSIP number of
such Securities, if any, that the Securities of such series are being redeemed
at the option of the Company pursuant to provisions contained in the terms of
the Securities of such series or in a supplemental indenture establishing such
series, if such be the case, together with a brief statement of the facts
permitting such redemption, that payment will be made upon presentation and
surrender of the applicable Securities, that all Coupons, if any, maturing
subsequent to the date fixed for redemption shall be void, that any interest
accrued to the Redemption Date will be paid as specified in said notice, and
that on and after said Redemption Date any interest thereon or, in case of
partial redemptions, on the portions thereof to be redeemed, will cease to
accrue. If less than all the Securities of any series are to be redeemed the
notice of redemption shall specify the numbers of the Securities of such series
to be redeemed, and, if only Bearer Securities of any series are to be redeemed,
and if such Bearer Securities may be exchanged for Registered Securities, the
last date on which exchanges of Bearer Securities for Registered Securities not
subject to redemption may be made. In case any Security of any series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
Redemption Date, upon surrender of such Security and any Coupons appertaining
thereto, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof and with appropriate Coupons will be issued,
or, in the case of Registered Securities providing appropriate space for such
notation, at the option of the Holders, the Trustee, in lieu of delivering a new
Security or Securities as aforesaid, may make a notation on such Security of the
payment of the redeemed portion thereof.
Notice of redemption of Securities and Coupons, if any, to
be redeemed at the election of the Company shall be given by the Company or,
at the Company's request, by the Trustee in the name and at the expense of the
Company.
SECTION 1105. Deposit of Redemption Price.
On or before (but in the case of payments to be made at a
Place of Payment outside of the United States, its territories, possessions
and areas subject to its jurisdiction, at least one New York Business Day
before) any Redemption Date, the Company shall deposit in immediately
available funds with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an
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amount of Money in the relevant currency (or a sufficient number of currency
units, as the case may be) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) any accrued
interest on and Additional Amounts with respect to all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein 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 such interest appertaining to any Bearer Securities 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 and Additional Amounts 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 upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002), and provided,
further, that 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 307.
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 any interest or Additional Amounts
represented by Coupons shall be payable only upon presentation and surrender
of those Coupons at an office or agency located outside of the United States
except as otherwise provided pursuant to Sections 901(10) and 1002.
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.
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SECTION 1107. Securities Redeemed in Part.
Any Registered Security (including Coupons, if any) which is
to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Registered Security or Securities (with appropriate Coupons, if
any, attached) of the same series, containing identical terms and provisions,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security (including Coupons, if any) so surrendered. If a
Security in global from is so surrendered, the Company shall execute and the
Trustee shall authenticate and deliver to the U.S. Depository or other
depository for such Security in global form as shall be specified in the
Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 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 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver outstanding Securities of a
series (other than any previously called for redemption or any of such
Securities in respect of which cash shall have been released to the Company),
together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) 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
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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 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
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 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 nor more than 60
days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Securities of any series which are repayable at the option
of the Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such series. The repayment of
any principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their Stated Maturity, for purposes of
Section 309, shall not operate as a payment, redemption or satisfaction of the
indebtedness represented by such Securities unless and until the Company, at
its option, shall deliver or surrender the same to the Trustee with a
directive that such Securities be cancelled. Notwithstanding anything to the
contrary contained in this Section 1301, in connection with any repayment of
Securities, the Company may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Holders of such Securities on or before the
close of business on the repayment date an amount not less than the repayment
price payable by the Company on repayment of such Securities, and the
obligation
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of the Company to pay the repayment price of such Securities shall be satisfied
and discharged to the extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or
the determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same Currency, or
(ii) any distribution to Holders of Securities, in the absence of any
provision to the contrary in the form of Security of any particular series,
any amount in respect of any Security denominated in a Currency other than
Dollars shall be treated for any such action or distribution as that amount of
Dollars that could be obtained for such amount at the noon buying rate in the
City of New York for cable transfers in foreign currencies as certified for
customs purposes by the Federal Reserve Bank of New York and as of the record
date with respect to Registered Securities of such series (if any) for such
action, determination of rights or distribution (or, if there shall be no
applicable record date, such other date reasonably proximate to the date of
such action, determination of rights or distribution) as the Company may
specify in a written notice to the Trustee.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May be Called.
A meeting of Holders of Securities of such series may be
called at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken
by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York or, if Securities of such series are to be issued as Bearer Securities,
in London, as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
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(b) In case at any time the Company (by or pursuant to a
Board Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York, or, if Securities of such series are to issued as Bearer Securities,
in London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders, of Securities of such series; provided, however, that if
any action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not
less than 66-2/3% in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote 66-2/3% in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
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Except as limited by the proviso to Section 902, any
resolution represented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any consent or waiver
which this Indenture expressly provides may be given by the Holders of not
less than 66-2/3% in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly convened and
at which a quorum is present as aforesaid only by the affirmative vote of the
Holders of 66-2/3% in principal amount of the Outstanding Securities of that
series; and provided, further, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percent age, which is less than a majority, in principal amount of
the outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
Coupons appertaining thereto, whether or not present or represented at the
meeting.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing
the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified
in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be
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elected by vote of the Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signature of the Holders of Securities of such series or of
their representative by proxy and the principal amounts and serial number of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record, at least in triplicate,
of the proceedings of each meeting of Holders of Securities of any series shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
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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.
QUESTAR PIPELINE COMPANY
By /s/ D.N. Rose
----------------------------
[SEAL] Name: D. N. Rose
Title: President and Chief
Executive Officer
Attest:
/s/ Connie C. Holbrook
- --------------------------
Name: Connie C. Holbrook
Title: Secretary
FIRST SECURITY BANK, N.A., Trustee
[SEAL] By /s/ Brett R. King
---------------------------------
Name: Brett R. King
Title: Assistant Vice President
Attest:
/s/ Val T. Orton
- -----------------------------
Name: Val T. Orton
Title: Vice President
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STATE OF UTAH )
: SS.:
COUNTY OF SALT LAKE )
On this 17th day of August, 1998 before me personally
appeared D. N. Rose, who acknowledged himself to be the President and Chief
Executive Officer of QUESTAR PIPELINE COMPANY, a Utah corporation, and that
he, as such President and Chief Executive Officer, being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by
signing the name of the corporation by himself as such President and Chief
Executive Officer.
IN WITNESS WHEREOF, I hereunto set may hand and official
seal.
/s/ Lois S. Long
---------------------------------
Notary Public
STATE OF UTAH )
: SS.:
COUNTY OF SALT LAKE )
On this 17th day of August, 1998 before be personally came
Brett R. King, to me known, who, being by me duly sworn, did depose and say
that he is an Assistant Vice President of FIRST SECURITY BANK, N.A., the
national banking association described in and which executed the foregoing
instrument; that he knows the seal of said national banking association; that
the seal affixed to said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said national banking association, and
that he signed his name thereto by like authority.
/s/ Janice Bryant
------------------------------
Notary Public
[NOTARY SEAL]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT
NO. FXR-__ $___________
CUSIP:_________
QUESTAR PIPELINE COMPANY
MEDIUM-TERM NOTE
(Fixed Rate)
Original Issue Date:____ Interest Rate:__%
Stated Maturity:____ Redemption Percentage:__
Interest Payment Date(s): Annual Redemption Percentage:__
June 1 and December 1
Regular Record Date(s): Redemption Commencement Date:__
May 15 and November 15
Other Provisions:____ Sinking Fund/Repayment Provision:__
Optional Repayment Date:__
The Redemption Price (if applicable) shall initially be the
Redemption Percentage of the principal amount of this Note to be redeemed and
shall decline (but not below par) at each anniversary of the Redemption
Commencement Date by the Annual Redemption Percentage of the principal amount
to be redeemed until the Redemption Price is 100% of such principal amount.
"N/A" as used herein means "Not Applicable". "A/S" as used herein means "As
stated in this Note".
<PAGE>
QUESTAR PIPELINE COMPANY, a corporation duly organized and existing under the
laws of the State of Utah (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal sum of
________________________________________________DOLLARS
at Stated Maturity as specified above (except to the extent redeemed or repaid
prior to the Stated Maturity), and to pay interest thereon from the Original
Issue Date specified above or from the most recent Interest Payment Date
(subject to the provisions below) to which interest has been paid or duly
provided for, periodically on each Interest Payment Date, commencing with the
first such Interest Payment Date next succeeding the Original Issue Date
specified above, and at Stated Maturity (the date on each such Stated
Maturity, Redemption Date, and Optional Repayment Date and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Indenture being referred to hereinafter as a
"Maturity" with respect to principal payable on such date), at the Interest
Rate specified above, until the principal hereof is paid or made available for
payment; provided, that if such Original Issue Date is after a Regular Record
Date and before the Interest Payment Date immediately following such Regular
Record Date, interest payments will commence on the second Interest Payment
Date following the Original Issue Date. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date (except at
Maturity) will, as provided in the Indenture, be paid to the Person in whose
name this Note (or one or more Notes which are Predecessor Securities) is
registered at the close of business on the Regular Record Date next preceding
such Interest Payment Date. Any such interest which is payable, but not so
punctually paid or duly provided for on any Interest Payment Date, will
forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more Notes
which are Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to the Holder of this Note not
<PAGE>
less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture. Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Any provision contained herein with respect to the
calculation of the rate of interest applicable to this Note, its payment dates
or any other matter relating hereto may be modified as specified in an
Addendum relating hereto if so specified above.
This Note is one of a duly authorized series of Securities
of the Company (herein called the "Securities", and the series thereof to
which this Note belongs being herein called the "Notes"), issued and to be
issued under an Indenture, dated as of August [ ], 1998, (herein called the
"Indenture") between the Company and First Security Bank, N.A. (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series of Securities designated as
"Medium-Term Notes, Series A". The Notes may be issued from time to time at
varying maturities, interest rates and other terms and in an aggregate
principal amount up to $175,000,000, which amount may be increased if duly
authorized by the Company.
Unless otherwise specified on the first page hereof, the
Interest Payment Dates with respect to this Note will be June 1 and December 1
of each year, and the Regular Record Dates in respect of such Interest Payment
Dates will be the immediately preceding May 15 and November 15 (whether or not
a Business Day), respectively. If any Interest Payment Date or Maturity with
respect to this Note falls on a day that is not a Business Day, the payment
due on such Interest Payment Date or at Maturity will be made on the following
day that is a Business Day
2
<PAGE>
with respect to this Note as if it were made on the date such payment was due
and no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date or Maturity, as the case may be. Unless
otherwise specified on the first page of this Note, the Interest Rate on this
Note will be computed on the basis of a 360-day year of twelve 30 day months.
"Business Day" means any day that is not a Saturday or Sunday, and that in The
City of New York is not a day on which banking institutions are generally
authorized or obligated by law or executive order to close.
If this Note is a Definitive Note, payments of principal,
premium, if any, and interest payable at Maturity on this Note will be made in
immediately available funds at the Corporate Trust Office of the Trustee in
Salt Lake City, Utah, or at such other place as the Company may designate,
provided that this Note is presented to the Trustee in time for the Trustee to
make such payments in such funds in accordance with its normal procedures.
Interest (other than interest payable at Maturity) will be paid by check
mailed to the address of the Person entitled thereto as it appears in the
Security Register as of the Regular Record Dates or, at the option of the
Company, by wire transfer to an account maintained by such Person with a bank
located in the United States; provided, however, that the Holder of this Note
may be entitled to receive payments of principal, premium, if any, and
interest by wire transfer to an account maintained by such Holder with a bank
located in the United States if an appropriate written request has been
received by the Trustee prior to the Regular Record Date in respect of any
interest payment, or the date which is fifteen days before the Maturity of the
Note, as the case may be.
If this Note is a Global Security representing Book-Entry
Notes, payments of the principal of, premium, if any, and interest on the Note
will be made by check or by wire transfer to an account maintained by the
Depositary for such purpose.
This Note is not subject to redemption prior to the Stated
Maturity unless a Redemption Commencement Date and Redemption Percentages are
specified on the first page hereof. If so specified, this Note is subject to
redemption upon not more than 60 days nor less than 30
3
<PAGE>
days notice by mail, at any time on or after the Redemption Commencement Date
specified on the first page hereof, as a whole or in part, at the election of
the Company, at the Redemption Prices set forth on the first page hereof,
together, in the case of any such redemption, with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Note (or
one or more Notes which are Predecessor Securities) at the close of business
on the relevant Record Dates referred to on the first page hereof, all as
provided in the Indenture.
In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the surrender hereof.
If so provided on the first page of this Note, this Note
will be subject to repayment at the option of the Holder hereof on the
Optional Repayment Date, if any, indicated on the first page hereof. If no
Optional Repayment Date is set forth on the first page hereof, this Note will
not be repayable at the option of the Holder prior to Stated Maturity. On any
Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 at the option of the Holder hereof at a price equal to
100% of the principal amount to be repaid, together with interest thereon
payable to the Optional Repayment Date, on notice in the form entitled "Option
to Elect Repayment" below, duly completed, given together with this Note by
such Holder to the Company not more than 60 nor less than 30 days prior to the
Optional Repayment Date. In the event of repayment of this Note in part only,
a new Note for the portion hereof not repaid will be issued in the name of the
Holder hereof upon the surrender hereof. Exercise of such repayment option by
the Holder shall be irrevocable.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal of all of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
<PAGE>
The Notes are subject to satisfaction, discharge and
defeasance as provided in Section 403 of the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding or, in the case less than all of the
several series of Securities are affected, the holders of a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon such future Holders
of this Note and of any Note issued upon the registration or transfer hereof
or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in Salt Lake City, Utah, or at such other
place as the Company may designate from time to time, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Register duly executed by, the Holder hereof or his
attorney duly authorized in
5
<PAGE>
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable in registered form without coupons in
minimum denominations of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized denominations, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note which are defined in the
Indenture shall have the meaning assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
Unless the certificate of authentication hereon has been
executed by First Security Bank, N.A., the successor trustee under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed, manually or in facsimile, and a facsimile of its
corporate seal to be imprinted hereon.
QUESTAR PIPELINE COMPANY
By:_________________________
Name:
Title:
ATTEST:
By:_____________________
Name:
Title:
[SEAL]
Date:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated herein, referred to in
the within-mentioned Indenture.
FIRST SECURITY BANK, N.A., as Trustee
By:______________________________
Authorized Signatory
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Note (or portion hereof specified below) pursuant
to its terms at a price equal to 100% of the principal amount hereof, together
with interest thereon payable to the Optional Repayment Date, to the
undersigned at _______________________________________________________________
______________________________________________________________________________
(Please Print or Typewrite Name And Address of the Undersigned)
For this Note to be repaid, the Trustee must receive this
"Option to Elect Repayment" form, duly completed, together with this Note not
more than 60 nor less than 30 days prior to an Optional Repayment Date shown
on the face of this Note at its Corporate Trust Office, or at such other place
or places designated by the Company and notified by it to the Holder of this
Note.
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the Holder elects to have
repaid _____________________________________________________________; and
specify the denomination or denominations (which shall be authorized
denominations) of the Notes to be issued to the Holder for the portion of the
within Note not being repaid (in the absence of any specification, one such
Note will be issued for the portion not being repaid)_____________________.
Date: ______________
__________________________________
Note: The signature on this Option to
Elect Repayment must correspond with the
name as written in this Note in every
particular without alteration or
enlargement or any change whatsoever.
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT
NO. FLR-__ $
CUSIP:
QUESTAR PIPELINE COMPANY
MEDIUM-TERM NOTE
(Floating Rate)
Original Issue Date: Minimum Rate:
Stated Maturity: Maximum Rate:
Interest Payment Date(s): Interest Reset Dates:
Regular Record Date(s): Interest Reset Period:
Base Rate(s): Interest Determination Date:
Index Maturity: Redemption Percentage:
Initial Interest Rate: Annual Redemption Percentage:
Spread: Redemption Commencement Date:
Spread Multiplier: Sinking Fund/Repayment Provision:
Calculation Agent: Optional Repayment Date:
Other Provisions:
The Redemption Price (if applicable) shall initially be the
Redemption Percentage of the principal amount of this Note to be redeemed and
shall decline (but not below par) at each anniversary of the Redemption
Commencement Date by the Annual Redemption Percentage of the principal amount
to be redeemed until the Redemption Price is 100% of such principal amount.
"N/A" as used herein means "Not Applicable". "A/S" as used herein means "As
stated in this Note".
<PAGE>
QUESTAR PIPELINE COMPANY, a corporation duly organized and
existing under the laws of the State of Utah (herein called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
DOLLARS
at Stated Maturity as specified above (except to the extent redeemed or repaid
prior to the Stated Maturity), and to pay interest thereon from the Original
Issue Date specified above or from the most recent Interest Payment Date
(subject to the provisions below) to which interest has been paid or duly
provided for, periodically on each Interest Payment Date, commencing with the
first such Interest Payment Date next succeeding the Original Issue Date
specified above, and at Stated Maturity (the date on each such Stated
Maturity, Redemption Date, and Optional Repayment Date and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Indenture being referred to hereinafter as a
"Maturity" with respect to principal payable on such date), at the Interest to
be determined in accordance with the provisions below, depending on the Base
Rate(s) shown above (the "Floating Interest Rate"), until the principal hereof
is paid or made available for payment; provided, that if such Original Issue
Date is after a Regular Record Date and before the Interest Payment Date
immediately following such Regular Record Date, interest payments will
commence on the second Interest Payment Date following the Original Issue
Date. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date (except at Maturity) will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more Notes
which are Predecessor Securities) is registered at the close of business on
the Regular Record Date next preceding such Interest Payment Date. Any such
interest which is payable, but not so punctually paid or duly provided for on
any Interest Payment Date, will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Notes which are Predecessor Securities) is
registered at the close of
2
<PAGE>
business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to the Holder of
this Note not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Notes of this series may be listed,
upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Reference herein to "this Note", "hereof", "herein"
and comparable terms shall include an Addendum hereto if an Addendum is
specified above.
Any provision contained herein with respect to the
calculation of the rate of interest applicable to this Note, its payment dates
or any other matter relating hereto may be modified as specified in an
Addendum relating hereto if so specified above.
This Note is one of a duly authorized series of Securities
of the Company (herein called the "Securities", and the series thereof to
which this Note belongs being herein called the "Notes"), issued and to be
issued under an Indenture, dated as of August [ ], 1998, (herein called the
"Indenture") between the Company and First Security Bank, N.A. (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series of Securities designated as
"Medium-Term Notes". The Notes may be issued from time to time at varying
maturities, interest rates and other terms and in an aggregate principal
amount up to $175,000,000, which amount may be increased if duly authorized by
the Company.
If this Note is a Definitive Note, payments of the principal
of, premium, if any, and interest on this Note will be made in immediately
available funds at the Corporate Trust Office of the Trustee in Salt Lake
City, Utah or at such other place as the Company may designate, provided that
this Note is presented to the Trustee in time for the Trustee to make such
payments in such funds
3
<PAGE>
in accordance with its normal procedures. Interest (other than interest
payable at Maturity) will be paid by check mailed to the address of the Person
entitled thereto as it appears in the Security Register as of the Regular
Record Date or, at the option of the Company, by wire transfer to an account
maintained by such Person with a bank located within the United States;
provided, however, that the Holder of this Note may be entitled to receive
payments of principal, premium, if any, and interest by wire transfer to an
account maintained by such Holder with a bank located in the United States if
an appropriate written request has been received by the Trustee prior to the
Regular Record Date in respect of any interest payment, or the date which is
fifteen days before the Stated Maturity of the Note, as the case may be.
If this Note is a Global Security representing Book-Entry
Notes, payments of the principal of, premium, if any, and interest on the Note
will be made by check or by wire transfer to an account maintained by the
Depositary for such purpose.
This Note is not subject to redemption prior to the Stated
Maturity unless a Redemption Commencement Date and Redemption Percentage are
specified on the first page of this Note. If so specified, this Note is
subject to redemption upon not more than 60 days' nor less than 30 days'
notice by mail, at any time on or after the Redemption Commencement Date
specified on the first page hereof, as a whole or in part, at the election of
the Company, at the Redemption Prices set forth on the first page hereof,
together, in the case of any such redemption, with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Note (or
one or more Notes which are Predecessor Securities) at the close of business
on the relevant Record Dates referred to on the first page hereof, all as
provided in the Indenture.
In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the surrender hereof.
4
<PAGE>
If so provided on the first page hereof, this Note will be
subject to repayment at the option of the Holder hereof on the Optional
Repayment Date, if any, indicated on the first page hereof. If no Optional
Repayment Date is set forth on the first page hereof, this Note will not be
repayable at the option of the Holder prior to Stated Maturity. On any
Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 at the option of the Holder hereof at a price equal to
100% of the principal amount to be repaid, together with interest thereon
payable to the Optional Repayment Date, on notice in the form entitled "Option
to Elect Repayment" below, duly completed, given together with this Note by
such Holder to the Company not more than 60 nor less than 30 days prior to the
Optional Repayment Date. In the event of repayment of this Note in part only,
a new Note for the portion hereof not repaid will be issued in the name of the
Holder hereof upon the surrender hereof. Exercise of such repayment option by
the Holder shall be irrevocable.
The "Floating Interest Rate" on this Note will be calculated
by reference to the Base Rate(s), as specified on the first page hereof, (a)
plus or minus the Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any. The Base Rate may be one or more of: (a) the Commercial
Paper Rate, (b) the Federal Funds Rate, (c) LIBOR, (d) the Prime Rate, (e) the
Treasury Rate or (f) such other interest rate formula as is set forth on the
first page hereof. The "Index Maturity" is the period to maturity of the
instrument or obligation with respect to which the related Base Rate or Rates
are calculated. Except as otherwise provided herein, all percentages resulting
from any calculation will be rounded out to the nearest one hundred-thousandth
of a percentage point (with five one-millionths of a percentage point rounded
upward), and all dollar amounts used in or resulting from such calculation
will be rounded to the nearest cent (with one-half cent being rounded upward).
Notwithstanding the foregoing, if this Note is designated
above as having an Addendum attached, the Note shall bear interest in
accordance with the terms described in such Addendum.
Unless otherwise specified on the first page hereof, the
"Regular Record Date" with respect to this
5
<PAGE>
Note shall be the fifteenth calendar day immediately preceding the related
Interest Payment Date or Dates, whether or not such date shall be a Business
Day, and interest will be payable, in the case of Notes which reset daily,
each Business Day, in the case of Notes which reset weekly, on Wednesday of
each week (with the exception of weekly reset Floating Rate Notes as to which
the Treasury Rate is an applicable Base Rate, which will reset Tuesday of each
week, except as described below), in the case of Notes which reset monthly, on
the third Wednesday of each month, in the case of Notes which reset quarterly,
on the third Wednesday of [March, June, September and December] of each year,
in the case of Notes which reset semi-annually, on the third Wednesday of the
two months of each year specified on the first page hereof, and in the case of
Notes which reset annually, on the third Wednesday of the month specified on
the first page hereof (each an "Interest Payment Date"); and, in each case, at
Maturity.
Payments of Interest with respect to any Interest Payment
Date will include interest accrued to but excluding such Interest Payment
Date. Accrued interest is calculated by multiplying the face amount of this
Note by an accrued interest factor. Such accrued interest factor is computed
by adding the interest factor calculated for each day from the later of the
Original Issue Date, or from the last date to which interest has been paid or
duly provided for, to the date for which accrued interest is being calculated.
The interest factor (expressed as a decimal rounded to the nearest one
hundred-thousandth of a percentage point) for each such day is computed by
dividing the interest rate (expressed as a decimal rounded to the nearest
one-hundred-thousandth of a percentage point) applicable to such day by 360,
in the case of Commercial Paper Rate Notes, Federal Funds Rate Notes, LIBOR
Notes, or Prime Rate Notes or by the actual number of days in the year, in the
case of Treasury Rate Notes. The interest factor for Floating Rate Notes for
which the interest rate is calculated with reference to two or more Base Rates
will be calculated in each period in the same manner as if only the lowest of
the applicable Base Rates applied. If any Interest Payment Date for this Note
falls on a day that is not a Business Day with respect to this Note, such
Interest Payment Date for this Note will be the following day that is a
Business Day for this Note, except that, in the case of a LIBOR Note (or a
6
<PAGE>
Note for which LIBOR is the applicable Base Rate), if such Business Day is in
the next succeeding calendar month, such Interest Payment Date will be the
immediately preceding day that is a Business Day for this Note. If the
Maturity of this Note falls on a day that is not a Business Day with respect
to this Note, the payment of principal, premium, if any, and interest will be
made on the next succeeding Business Day, and no interest on such payment
shall accrue for the period from and after Maturity. Unless otherwise
specified on the first page hereof or in an Addendum hereto, "Business Day"
means any day that is not a Saturday or Sunday, and that in The City of New
York is not a day on which banking institutions are generally authorized or
obligated by law or executive order to close, and, with respect to any LIBOR
Note, is a London Business Day. "London Business Day" means any day on which
dealings in deposits in United States dollars are transacted in the London
interbank market.
Except as provided on the first page hereof, the rate of
interest on this Note will be reset daily, weekly, monthly, quarterly,
semi-annually or annually (each an "Interest Reset Date"), as specified on the
first page hereof. Except as provided on the first page hereof, if this Note
resets daily, the Interest Reset Date will be each Business Day, if this Note
resets weekly, the Interest Reset Date will be on Wednesday of each week (with
the exception of weekly reset Floating Rate Notes as to which the Treasury
Rate is an applicable Base Rate, which will reset on Tuesday of each week,
except as described below), if this Note resets monthly, the Interest Reset
Date will be the third Wednesday of each month, if this Note resets quarterly,
the Interest Reset Date will be the third Wednesday of each [March, June,
September and December] of each year, if this Note resets semi-annually the
Interest Reset Date will be the third Wednesday of each of the two months of
each year specified on the first page hereof, and if this Note resets
annually, the Interest Reset Date will be the third Wednesday of the month of
each year as specified on the first page hereof, provided, however, that (a)
the interest rate in effect from the Original Issue Date to the first Interest
Reset Date will be the Initial Interest Rate (as set forth on the first page
hereof), and (b) the interest rate in effect for the ten calendar days
immediately prior to Maturity will be the interest rate
7
<PAGE>
in effect on the tenth calendar day preceding such Maturity. If any Interest
Reset Date would otherwise be a day that is not a Business Day, such Interest
Reset Date shall be the next succeeding Business Day (or, in the case of a
LIBOR Note or a Note for which LIBOR is an applicable Base Rate, if such
Business Day falls in the next calendar month, such Interest Reset Date shall
be the last Business Day in the preceding month).
The interest rate applicable to each Interest Reset Period
commencing on the Interest Reset Date or Dates with respect to such Interest
Reset Period will be the rate determined as of the applicable "Interest
Determination Date." The Interest Determination Date with respect to the
Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will be the
second Business Day preceding each Interest Reset Date. The Interest
Determination Date with respect to LIBOR will be the second London Business
Day preceding each Interest Reset Date. With respect to the Treasury Rate, the
Interest Determination Date will be the day in the week in which the Interest
Reset Date falls on which day Treasury Bills are normally auctioned (Treasury
Bills are normally sold at auction on Monday of each week, unless that day is
a legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday);
provided, however, that if, as a result of a legal holiday, an auction is held
on the Friday of the week preceding the Interest Reset Date, the related
Interest Determination Date shall be such preceding Friday; and provided,
further, that if an auction shall fall on any Interest Reset Date, then the
related Interest Reset Date shall instead be the first Business Day
immediately following such auction. If the interest rate of this Note is
determined with reference to two or more Base Rates, the Interest
Determination Date will be the first Business Day which is at least two
Business Days prior to such Interest Reset Date on which each Base Rate shall
be determinable. Each Base Rate shall be determined and compared on such date,
and the applicable interest rate shall take effect on the related Interest
Reset Date.
The Calculation Agent (which shall be the Trustee unless
otherwise specified on the first page hereof and which may be changed by the
Company from time to time) shall calculate the Floating Interest Rate on
8
<PAGE>
this Note on or before each Calculation Date and, upon request, provide to
holders the Floating Interest Rate then in effect and, if different, the
interest rate which will become effective as a result of a determination made
for the next succeeding Interest Reset Date with respect to this Note. The
Calculation Agent's determination of any Floating Interest Rate will be final
and binding in the absence of manifest error. Unless otherwise specified on
the first page hereof or in an Addendum hereto, the "Calculation Date", where
applicable, pertaining to any Interest Determination Date will be the earlier
of (i) the tenth calendar day after such Interest Determination Date, or if
any such day is not a Business Day, the next succeeding Business Day or (ii)
the Business Day immediately preceding the applicable Interest Payment Date or
Maturity, as the case may be.
Notwithstanding the other provisions herein, the Floating
Interest Rate hereon which may accrue during any interest period shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the first page hereof and, in addition, the
Floating Interest Rate shall in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
Determination of Commercial Paper Rate.
The "Commercial Paper Rate" will be determined by the
Calculation Agent in accordance with the following provisions:
"Commercial Paper Rate" means, with respect to any Interest
Determination Date relating to a Commercial Paper Rate Note or to any Note for
which the Commercial Paper Rate is one of the Base Rates (a "Commercial Paper
Rate Interest Determination Date"), the Money Market Yield (as defined below)
on such date of the rate for commercial paper having the Index Maturity
specified on the first page hereof as published by the Board of Governors of
the Federal Reserve System in "Statistical Release H.15(519), Selected
Interest Rates" or any successor publication ("H.15 (519)") under the heading
"Commercial Paper--Nonfinancial" or, if unavailable, under such other heading
representing commercial paper issued by non-financial entities whose bond
rating is "AA", or the
9
<PAGE>
equivalent, from a nationally recognized statistical rating organization. In
the event that such rate is not published by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Commercial Paper Rate Interest
Determination Date, then the Commercial Paper Rate shall be the Money Market
Yield on such Commercial Paper Rate Interest Determination Date of the rate
for commercial paper having the Index Maturity specified on the first page
hereof as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Governmental
Securities" or any successor publication ("Composite Quotations") under the
heading "Commercial Paper" (with an Index Maturity of one month or three
months being deemed to be equivalent to an Index Maturity of thirty days or
ninety days, respectively). If such rate is not published in either H.15 (519)
or Composite Quotations by 3:00 P.M., New York City time, on such Calculation
Date, then the Commercial Paper Rate will be calculated by the Calculation
Agent and will be the Money Market Yield of the arithmetic mean of the offered
rates, as of approximately 11:00 A.M., New York City time, on such Commercial
Paper Rate Interest Determination Date, of three leading dealers of commercial
paper in The City of New York (which may include one or more of the Agents or
their affiliates) selected by the Calculation Agent (after consultation with
the Company) for commercial paper having the specified Index Maturity placed
for a nonfinancial issuer whose bond rating is "AA," or the equivalent, from a
nationally recognized statistical rating agency; provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Interest Determination Date will be the Commercial Paper Rate
in effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a
percentage) calculated in accordance with the following formula:
D x 360
Money Market Yield = [----------------] x 100
360 - (DxM)
10
<PAGE>
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Federal Funds Rate.
The "Federal Funds Rate" will be determined by the
Calculation Agent in accordance with the following provisions:
"Federal Funds Rate" means, with respect to any Interest
Determination Date relating to a Federal Funds Rate Note or a Floating Rate
Note for which the interest rate is determined with reference to the Federal
Funds Rate (a "Federal Funds Rate Interest Determination Date"), the rate on
such date for United States dollar federal funds as published in H.15(519)
under the heading "Federal Funds (Effective)" or, if not published by 3:00
P.M., New York City time, on the related Calculation Date, the rate on such
Federal Funds Rate Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If such rate is
not published in either H.15(519) or Composite Quotations by 3:00 P.M., New
York City time, on the related Calculation Date, then the Federal Funds Rate
on such Federal Funds Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight Untied States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
(which may include the Agents or their affiliates) selected by the Calculation
Agent prior to 9:00 A.M., New York City time, on such Federal Funds Rate
Interest Determination Date; provided, however, that if the brokers so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
Determination of LIBOR.
"LIBOR" will be determined by the Calculation Agent in
accordance with the following provisions:
11
<PAGE>
(i) With respect to an Interest Determination Date relating
to a LIBOR Note or any Floating Rate Note for which LIBOR is an applicable
Base Rate (a "LIBOR Interest Determination Date"), either, as specified on the
first page hereof: (a) the arithmetic mean of the offered rates for deposits
in U.S. dollars for the period of the Index Maturity specified on the first
page hereof, commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, which appear on the Reuters
Screen LIBOR Page as of 11:00 A.M., London time, on the LIBOR Interest
Determination Date, if at least two such offered rates appear on the Reuters
Screen LIBO Page ("LIBOR Reuters"), or (b) the rate for deposits in U.S.
dollars having the Index Maturity designated on the first page hereof,
commencing on the second London Business Day immediately following that LIBOR
Interest Determination Date, that appears on the Telerate Page 3750 as of
11:00 A.M., London time, on that LIBOR Interest Determination Date ("LIBOR
Telerate"). Unless otherwise indicated on the first page hereof, "Reuters
Screen LIBO Page" means the display designated as Page "LIBO" on the Reuters
Monitor Money Rate Service (or such other page as may replace the LIBO page on
that service for the purpose of displaying London interbank offered rates of
major banks). "Telerate Page 3750" means the display designated as page "3750"
on the Telerate Service (or such other page as may replace the 3750 page on
that service or such other service or services as may be nominated by the
British Bankers' Association for the purpose of displaying London interbank
offered rates for U.S. dollar deposits). If neither LIBOR Reuters nor LIBOR
Telerate is specified on the first page hereof, LIBOR will be determined as if
LIBOR Telerate had been specified. If fewer than two offered rates appear on
the Reuters Screen LIBO Page, or if no rate appears on the Telerate Page 3750,
as applicable, LIBOR in respect of that LIBOR Interest Determination Date will
be determined as if the parties had specified the rate described in (ii)
below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear on the Reuters Screen LIBO Page, as
described in (i)(a) above, or on which no rate appears on the Telerate Page
3750, as specified in (i)(b) above, as applicable, LIBOR will be determined on
the basis of the rates at which deposits in U.S. dollars having the Index
Maturity desig-
12
<PAGE>
nated on the first page hereof are offered at approximately 11:00 A.M., London
time, on such LIBOR Interest Determination Date by four major banks
("Reference Banks") in the London interbank market selected by the Calculation
Agent (after consultation with the Company) to prime banks in the London
interbank market commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date and in a principal amount of
not less than U.S. $1,000,000 that is representative for a single transaction
in such market at such time. The Calculation Agent will request the principal
London office of each of the Reference Banks to provide a quotation of its
rate. If at least two such quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m., New York City time, on such LIBOR Interest
Determination Date by three major banks (which may include the Agents or their
affiliates) in The City of New York selected by the Calculation Agent (after
consultation with the Company) for loans in U.S. dollars to leading European
banks having the specified Index Maturity designated on the first page hereof
commencing on the second London Business Day immediately following such LIBOR
Interest Determination Date and in a principal amount equal to an amount of
not less than U.S. $1,000,000 that is representative for a single transaction
in such market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined as of such LIBOR Determination Date will be LIBOR
then in effect on such LIBOR Interest Determination Date.
Determination of Prime Rate.
The "Prime Rate" will be determined by the Calculation Agent
in accordance with the following provisions:
"Prime Rate" means, with respect to any Interest
Determination Date relating to a Prime Rate Note or a Floating Rate Note for
which the interest rate is determined with reference to the Prime Rate (a
"Prime Rate Interest Determination Date"), the rate on such date as such rate
is published in H.15(519) under the heading
13
<PAGE>
"Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New York
City time, on the related Calculation Date, then the Prime Rate shall be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 Page (as hereinafter defined) as such
bank's prime rate or base lending rate as in effect for such Prime Rate
Interest Determination Date. If fewer than four such rates appear on the
Reuters Screen USPRIME1 Page for such Prime Rate Interest Determination Date,
then the Prime Rate shall be the arithmetic mean of the prime rates or base
lending rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks (which may
include affiliates of the Agents) in The City of New York selected by the
Calculation Agent. If fewer than four such quotations are so provided, then
the Prime Rate shall be the arithmetic mean of four prime rates quoted on the
basis of the actual number of days in the year divided by a 360-day year as of
the close of business on such Prime Rate Interest Determination Date as
furnished in The City of New York by the major money center banks, if any,
that have provided such quotations and by a reasonable number of substitute
banks or trust companies (which may include affiliates of the Agents) to
obtain four such prime rate quotations, provided such substitute banks or
trust companies are organized and doing business under the laws of the United
States, or any State thereof, each having total equity capital of at least
$500 million and being subject to supervision or examination by Federal or
State authority.
"Reuters Screen USPRIME1 Page" means the display on the Reuter
Monitor Money Rates Service (or any successor service) on the "USPRIME1" page
(or such other page as may replace the USPRIME1 page on such service) for the
purpose of displaying prime rates or base lending rates of major United States
banks.
Determination of Treasury Rate.
The "Treasury Rate" will be determined by the Calculation
Agent in accordance with the following provisions:
14
<PAGE>
"Treasury Rate" means, with respect to any Interest
Determination Date relating to a Treasury Rate Note or any Note for which the
interest rate is determined by reference to the Treasury Rate (a "Treasury
Rate Interest Determination Date"), the rate applicable to the most recent
auction of direct obligations of the United States ("Treasury Bills") having
the Index Maturity specified on the first page hereof, as such rate is
published in H.15(519) under the heading "Treasury Bills -- auction average
(investment)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Interest Determination Date,
the auction average rate (expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury Bills having the specified
Index Maturity are not reported as provided by 3:00 P.M., New York City time,
on such Calculation Date, or if no such auction is held in a particular week,
then the Treasury Rate shall be calculated by the Calculation Agent and shall
be a yield to maturity (expressed as a bond equivalent on the basis of a year
of 365 days or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time on such Treasury Rate Interest Determination Date, of
three leading primary United States government securities dealers (which may
include one or more of the Agents or their affiliates) selected by the
Calculation Agent (after consultation with the Company), for the issue of
Treasury Bills with a remaining maturity closest to the specified Index
Maturity; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate determined as of such Treasury Rate Interest Determination Date will be
the Treasury Rate in effect on such Treasury Rate Interest Determination Date.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal of all of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
<PAGE>
The Notes are subject to satisfaction, discharge and
defeasance as provided in Section 403 of the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding or, in the case less than all of the
several series of Securities are affected, the holders of a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon such future Holders
of this Note and of any Note issued upon the registration of transfer hereof
or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in Salt Lake City, Utah, or at such other
place as the Company may designate from time to time, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Register duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
autho-
16
<PAGE>
rized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable in registered form without coupons in
minimum denominations of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized denominations, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note which are defined in the
Indenture shall have the meaning assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
Unless the certificate of authentication hereon has been
executed by First Security Bank, N.A., the Trustee under the Indenture, or its
successor thereunder, by the manual signature of one of its authorized
officers, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
17
<PAGE>
------------------------
The following abbreviations when used in the inscription on
this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian_________
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts to Minor
JT TEN - as joint tenants with Act_________________________
right of survivorship (State)
and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------------------------------------------------
the within Note of Questar Pipeline Company and does hereby irrevocably
constitute and appoint
___________________________________________________________________Attorney to
transfer said Note on the books of said Company, with full power of
substitution in the premises.
Dated:____________________ ______________________________________________
NOTICE: The signature of the Holder to this assignment must
correspond with the name as it appears upon the face of the within Note in
every particular, without alteration or enlargement or any change whatsoever,
and be guaranteed by an acceptable bank or broker.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Note (or portion hereof specified below) pursuant
to its terms at a price equal to 100% of the principal amount hereof, together
with interest thereon payable to the Optional Repayment Date, to the
undersigned at _______________________________________________________________
(Please Print or Typewrite Name and Address of the Undersigned)
For this Note to be repaid, the trustee must receive this
"Option to Elect Repayment" form, duly completed, together with this Note not
more than 60 nor less than 30 days prior to an Optional Repayment Date shown
on the face of this Note at its Corporate Trust Office, or at such other place
or places designated by the Company and notified by it to the Holder of this
Note.
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the Holder elects to have
repaid _________________________________________________; and specify the
denomination or denominations (which shall be authorized denominations) of the
Notes to be issued to the Holder for the portion of the within Note not being
repaid (in the absence of any specification, one such Note will be issued for
the portion not being repaid) _______________.
Date:___________________
________________________________
Note: The signature on this Option to
Elect Repayment must correspond with the
name as written in this Note in every
particular without alteration or
enlargement or any change whatsoever.
<PAGE>
Questar Corporation
180 East 100 South
P.O. Box 45433
Salt Lake City, UT 84145
Gary G. Sackett
Vice President & General Counsel
Tel: 801 324 5563
Fax: 801 324 5131
E-mail: [email protected]
August 17, 1998
Questar Pipeline Company
180 East 100 South Street
P.O. Box 45360
Salt Lake City, Utah 84145-0360
Ladies and Gentlemen:
Re: Questar Pipeline Company, Registration Statement on Form S-3
Relating to $175,000,000 Aggregate Principal Amount of Medium-Term Notes
I am acting as counsel for Questar Pipeline Company, a Utah
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 to be filed by the Company with the
Securities and Exchange Commission (the "Commission") on the date of this
letter (the "Registration Statement"). The Registration Statement relates to
the issuance and sale from time to time, pursuant to Rule 415 of the General
Rules and Regulations promulgated under the Securities Act of 1933 (the "1933
Act"), of up to $175,000,000 aggregate principal amount of the Company's
Medium-Term Notes (the "Notes") to be issued pursuant to an indenture (the
"Indenture") by and between the Company and First Security Bank, N.A., as
trustee (the "Trustee").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the 1933 Act.
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of
such documents, agreements, certificates and corporate or other records as I
have deemed necessary or appropriate as a basis for this opinion. This
includes: (i) the Registration Statement (together with the form of
preliminary prospectus that is a part of it) in the form to be filed by the
Company with the Commission on the date of this letter; (ii) the Indenture;
(iii) the form of the Notes issuable under the Indenture; (iv) the Form T-1 of
the Trustee being filed with the Commission as Exhibit 25.01 to the
Registration Statement pursuant to the Trust Indenture Act of 1939, as
amended; (v) the Restated Articles of Incorporation and Bylaws of the Company,
each as amended through the date of this letter; (vi) resolutions of the Board
of Directors of the Company relating to the filing of the Registration
Statement and the proposed issuance of the Notes; and (vii) the form of
Distribution Agreement to be entered into among the Company, Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Inc. and Smith Barney Inc. and
being filed as Exhibit 1.01 to the
<PAGE>
Registration Statement. In my examination, I have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to me as originals, the conformity to the original
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to this opinion that were not independently established or verified,
I have relied upon statements and representations of officers and other
representatives of the Company and others.
I am admitted to the Bar of the State of Utah, and I express no
opinion as to the laws of any other jurisdiction. To the extent that the
opinion set forth below relates to matters under the laws of the State of New
York, I have relied on the opinion of Skadden, Arps, Slate, Meagher & Flom
LLP, special counsel for the Company, which is being filed as Exhibit 5.02 to
the Registration Statement.
Based on and subject to the foregoing, I have formed the following
opinion: When (1) the Registration Statement has become effective under the
1933 Act, (2) the definitive terms of the Notes and of their issue and sale
have been duly established in conformity with the Indenture so as not to
violate any applicable law or agreement or instrument then binding on the
Company, and (3) the Notes have been duly executed and authenticated in
accordance with such Indenture and have been issued and sold as contemplated
in the Registration Statement, the attached prospectus and any supplement (the
"Prospectus"), the Notes will constitute valid and legally binding obligations
of the Company, entitled to the benefits provided by the Indenture and
enforceable against the Company in accordance with their terms, except to the
extent that enforcement may be limited by (a) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
I further consent to the reference made to me under the heading
"Legal Opinions" in the Prospectus and the filing of this opinion as Exhibit
5.01 to the Registration Statement. In giving such consent, I do not admit
that I am in the category of persons whose consent is required under Section 7
of the 1933 Act.
Very truly yours,
/s/ Gary G. Sackett
Gary G. Sackett
Vice President & General Counsel
Questar Corporation
Attorney for Questar Pipeline Company
2
<PAGE>
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
August 17, 1998
Questar Pipeline Company
180 East 100 South Street
Salt Lake City, Utah 84145-0360
Re: Questar Pipeline Company, Registration
Statement on Form S-3 Relating to
$175,000,000 Aggregate Principal Amount of
Medium-Term Notes
Ladies and Gentlemen:
We have acted as special counsel to Questar Pipeline
Company, a Utah corporation (the "Company"), in connection with the
preparation of a Registration Statement on Form S-3 to be filed by the
Company with the Securities and Exchange Commission (the "Commission") on the
date hereof (the "Registration Statement"). The Registration Statement relates
to the issuance and sale from time to time, pursuant to Rule 415 of the
General Rules and Regulations promulgated under the Securities Act of 1933, as
amended (the "1933 Act"), of up to $175,000,000 aggregate principal amount of
the Company's Medium-Term Notes (the "Notes") to be issued pursuant to an
indenture (the "Indenture"), by and between the Company and First Security
Bank, N.A. (the "Trustee").
This opinion is delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the 1933 Act.
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of such documents, agreements, certificates and corporate or
other records as we have deemed necessary or appropriate as a basis for the
opinion set forth herein, including (i) the Registration Statement (together
with the form of preliminary prospectus forming a part thereof), in the form
to be filed by the Company with the Commission on the date hereof, (ii) the
Indenture, (iii) the forms of the Notes issuable under the Indenture, (iv) the
Form T-1 of the Trustee being filed with the Commission as Exhibit
<PAGE>
Questar Pipeline Company
August 17, 1998
Page 2
25.01 to the Registration Statement pursuant to the Trust Indenture Act of
1939, as amended (the "1939 Act") and (v) the form of Distribution Agreement
(the "Distribution Agreement") by and among the Company, Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon Brothers Inc
(the "Underwriters") being filed as Exhibit 1.01 to the Registration
Statement.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such copies. In
making our examination of executed documents and documents to be executed, we
have assumed that the parties thereto (including the Company) had or will have
the power, corporate or other, to enter into and to perform all obligations
thereunder and have also assumed the due authorization by all requisite
action, corporate or other, and due execution and delivery by such parties of
such documents and, except to the extent set forth below with respect to the
Company, the validity and binding effect thereof on such parties. We have also
assumed that the Company has been duly incorporated and is validly existing
and in good standing. In addition, we have assumed that the Notes will be
executed in substantially the form reviewed by us. We have also assumed that
the terms of the Notes will have been established so as not to, and the
execution and delivery by the Company of the Indenture and the Notes and the
performance of its obligations thereunder do not and will not, violate,
conflict with or constitute a default under (i) any agreement or instrument to
which the Company or its properties is subject, (ii) any law, rule, or
regulation to which the Company is subject, (iii) any judicial or regulatory
order or decree of any governmental authority or (iv) any consent, approval,
license, authorization or validation of, or filing, recording or registration
with any governmental authority. As to any facts material to the opinion
expressed herein which were not independently established or verified, we have
relied upon statements and representations of officers and other
representatives of the Company and others.
<PAGE>
Questar Pipeline Company
August 17, 1998
Page 3
Members of our firm are admitted to the bar in the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction.
Based upon and subject to the qualifications, exceptions and
assumptions set forth herein, we are of the opinion that, when (i) the
Registration Statement has become effective under the 1933 Act, (ii) the
Indenture, in the form in which it is being filed as Exhibit 4.01 to the
Registration Statement, has been duly executed and delivered by the parties
thereto and qualified under the 1939 Act, (iii) the definitive terms of the
Notes and of their issue and sale have been duly established in conformity
with the Indenture and approved and authorized by all necessary corporate
action, (iv) the Distribution Agreement has been duly executed and delivered
by the parties thereto, (v) the Notes have been duly executed and
authenticated in accordance with the Indenture and (vi) the Notes have been
delivered to and paid for by the Underwriters as contemplated by the
Distribution Agreement, the Notes will constitute valid and binding obligations
of the Company, entitled to the benefits provided by the Indenture and
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
We hereby consent to the reference to our firm under the
heading "Legal Opinions" in the Prospectus forming a part of the Registration
Statement and the filing of this opinion as Exhibit 5.02 to the Registration
Statement. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the 1933 Act.
Gary G. Sackett may rely on this opinion (subject to the assumptions,
exceptions and qualifications contained herein) in rendering his opinion of
even date herewith to be filed as Exhibit 5.01 to the Registration Statement.
Very truly yours,
/s/ Skadden, Arps, Slate
Meagher & Flom LLP
<PAGE>
Exhibit 12.01
QUESTAR PIPELINE COMPANY
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
12 Months
Year Ended December 31, Ended June 30,
1993 1994 1995 1996 1997 1998
---------------------------------------------------------------------------------------------
(Dollars in Thousands) (Unaudited)
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income from continuing operations
before income taxes $33,855 $31,551 $32,760 $36,058 $42,906 $45,084
Less income from Overthrust
Pipeline Company (128) (229) (1,220) (182)
Plus debt expense 13,114 13,107 13,472 13,416 13,536 13,805
Plus allowance for borrowed funds
used during construction 322 376 138 229 210 317
Plus 50% of rental expenses 371 356 313 280 261 275
---------------------------------------------------------------------------------------------
$47,534 $45,161 $45,463 $49,801 $56,913 $59,481
=============================================================================================
FIXED CHARGES
Debt expense $13,114 $13,107 $13,472 $13,416 $13,536 $13,805
Plus allowance for borrowed funds
used during construction 322 376 138 229 376 317
Plus 50% of rental expense 371 356 313 280 261 275
---------------------------------------------------------------------------------------------
$13,807 $13,839 $13,923 $13,925 $14,173 $14,397
=============================================================================================
RATIO OF EARNINGS TO FIXED
CHARGES (1) 3.44 3.26 3.27 3.58 4.02 4.13
</TABLE>
(1) For purposes of this presentation, earnings represent income from
continuing operations before income taxes and fixed charges. Fixed
charges consist of total interest charges, amortization of debt issuance
costs and debt discounts, and the interest portion of rental costs.
<PAGE>
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Questar Pipeline
Company for the registration of $175,000,000 medium-term notes and to the
incorporation by reference therein of our report dated February 9, 1998, with
respect to the financial statements of Questar Pipeline Company included in
its Annual Report (Form 10-K/A) for the year ended December 31, 1997, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
August 13, 1998
<PAGE>
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
---------------------
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)
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
NOT APPLICABLE 87-0131890
(Jurisdiction of Incorporation (I.R.S. Employer
if not a U.S. national bank) identification No.)
79 SOUTH MAIN STREET
SALT LAKE CITY, UTAH 84111
(Address of principal executive offices) (Zip Code)
NOT APPLICABLE
(Name, address and telephone number of agent for service)
QUESTAR PIPELINE COMPANY
(Exact name of obligor as specified in its charter)
UTAH 87-0307414
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
180 East First South Street
P.O. Box 11450
Salt Lake City, Utah 84145-0360
(Address or principal executive offices) (Zip Code)
Medium Term Notes
(Title of the Indenture securities)
<PAGE>
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining of supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C. 20230; Federal
Reserve Bank of San Francisco, San Francisco, CA 94120; Federal
Deposit Insurance Corporation, Washington, D.C. 20429.
(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.
Neither the obligor nor any underwriter for the obligor is an
affiliate of the Trustee.
Item 16. List of Exhibits. List below all exhibits filed as part of this
statement of eligibility and qualification.
Exhibit 1: copy of the articles of association as now in effect
Exhibit 2: certificate of authority to commence business
including a certificate of the Comptroller of the
Currency evidencing the change of the Trustee's name
Exhibit 3: copy of the authorization of the trustee to exercise
corporate trust powers
Exhibit 4: copy of the bylaws of the trustee
Exhibit 5: Not applicable
Exhibit 6: Not applicable
Exhibit 7: A copy of the latest report published pursuant to law
or its supervising or examining authority
Exhibit 8: Not applicable
Exhibit 9: Not applicable
<PAGE>
Signature
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Security Bank, National Association, a national
banking association organized and existing under the laws of the United
States, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned thereunder duly authorized, all in the
City of Salt Lake City, and State of Utah, on the 10th day of August, 1998.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, Trustee
By:/s/ Brett R. King
----------------------------------
Brett R. King
Assistant Vice President
<PAGE>
EXHIBIT 1
ARTICLES OF ASSOCIATION
OF
FIRST SECURITY BANK
NATIONAL ASSOCIATION
(As Amended)
FIRST. The title of this Association, which shall carry on the
business of banking under the laws of the United States, shall be "First
Security Bank, National Association."
SECOND. The place where the main banking house or office of
this Association shall be located shall be Ogden, County of Weber, State of
Utah. Its general business and its operations of discount and deposit shall also
be carried on in said city, and the branch or branches established or maintained
by it in accordance with the provisions of Section 36 of Title 12, United States
Code. The Board of Directors shall the power to change the location of the main
office of this Association (i) to any other authorized branch location within
the limits of Ogden, Utah, without the approval of the shareholders of this
Association and upon notice to the Comptroller of the Currency or, (ii) to any
other place within Ogden, Utah, or within thirty (30) miles of Ogden, Utah, with
the approval of the shareholders and the Comptroller of the Currency. The Board
of Directors shall have the power to change the location of any branch or
branches of this Association to any other location, without the approval of the
shareholders of this Association but subject to the approval of the Comptroller
of the Currency.
THIRD. The Board of Directors of the consolidated association
shall consist of not less than five (5) nor more than twenty-five (25) of its
shareholders.
FOURTH. There shall be an annual meeting of the shareholders
the purpose of which shall be the election of Directors and the transaction of
whatever other business may be brought before said meeting. It shall be held at
the main office of the Bank or other convenient place as the Board of Directors
may designate, on the third Monday of March of each year, but if no election is
held on that day, it may be held on any subsequent day according to such lawful
rules as may be prescribed by the Board of Directors. Nominations for election
to the Board of Directors may be made by the Board of Directors or by any
stockholder of any outstanding class of capital stock of the Bank entitled to
vote for election of directors. Nominations, other than those made by or on
behalf of the existing management of the Bank, shall be made in writing and
shall be delivered or mailed to the President of the Bank and to the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days
prior to any meeting of stockholders called for the election of directors,
provided, however, that if less than 21 days notice of the meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the Bank that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the Bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the Chairman of the meeting, and upon his
instructions, the voting inspectors may disregard all votes cast for each such
nominee.
<PAGE>
FIFTH. The authorized amount of capital stock of this
Association shall be One Hundred Million Dollars ($100,000,000.00), divided into
4,000,000 shares of common stock of the par value of Twenty-five Dollars
($25.00) each; provided, however, that said capital stock may be increased or
decreased from time to time, in accordance with the provision of the laws of the
United States. The shareholders of this Association shall not have any
pre-emptive rights to acquire unissued shares of this Association.
SIXTH. (1) The Board of Directors shall appoint one of its
members President of this Association. It may also appoint a Chairman of the
Board, and one or more Vice Chairman. The Board of Directors shall have the
power to appoint one or more Vice Presidents, at least one of whom shall also be
a member of the Board of Directors, and who shall be authorized, in the absence
of the President, to perform all acts and duties pertaining to the office of the
President; to appoint a Cashier and such other officers and employees as may be
required to transact the business of this Association; to fix the salaries to be
paid to such officers or employees and appoint others to take their place.
(2) The Board of Directors shall have the power to
define the duties of officers and employees of this Association and to require
adequate bonds from them for the faithful performance of their duties; to make
all By-Laws that may be lawful for the general regulation of the business of
this Association and the management of its affairs, and generally to do and
perform all acts that may be lawful for a Board of Directors to do and perform.
(3) Each person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, administrative or investigative (other than an action
by or in the right of the Association) by reason of the fact that he is or was a
director, officer, employee or agent of the Association or is or was serving at
the request of the Association as a director, officer, employee, fiduciary or
agent of another corporation, partnership, joint venture, trust, estate or other
enterprise or was acting in furtherance of the Association's business shall be
indemnified against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Association; provided, however, no indemnification shall be given to a person
adjudged guilty of, or liable for, willful misconduct, gross neglect of duty, or
criminal acts or where there is a final order assessing civil money penalties or
requiring affirmative action by such person in the form of payments to the
Association. The termination of any action, suit or proceeding by judgment,
order, settlement, or its equivalent, shall not of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Association.
(4) Each 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 Association (such action or suit being known as a
"derivative proceeding") 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 Association
or is or was serving at the request of the Association as a director, officer,
employee, fiduciary or agent of another corporation, partnership, joint venture,
trust, estate or other enterprise shall be indemnified against expenses
(including attorney's fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Association; provided, however, that no indemnification
shall be given where there is a final order assessing civil money penalties or
requiring affirmative action by such person in the form of payments to the
<PAGE>
Association; and provided further that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Association, unless and only to the extent that the court in which
such action or suit was brought shall determine upon application 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
such court shall deem proper.
(5) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in (3) or (4) of this Article or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorney's fees) actually and reasonably incurred by
him in connection therewith.
(6) Any indemnification under (3) or (4) of this
Article (unless ordered by a court) shall be made by the Association only as
authorized in the specific case upon a reasonable determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
(3) or (4) of this Article. Such determination shall be made (a) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in written opinion, or (c) by the
stockholders.
(7) Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Association in advance of the
final disposition of such action, suit or proceeding as authorized in the manner
provided in (6) of this Article (i) if the Board of Directors determines, in
writing, that (1) the director, officer, employee or agent has a substantial
likelihood or prevailing on the merits; (2) in the event the director, officer,
employee or agent does not prevail, he or she will have the financial capability
or reimburse the Association; and (3) payment of expenses by the Association
will not adversely affect its safety and soundness; and (ii) upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Association as authorized in this Article.
(8) The indemnification provided by this Article shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any By-Law, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors, successors in interest, and
administrators of such a person.
SEVENTH. This Association shall have succession from the
date of its organization certificate until such time as it be dissolved by the
act of its shareholders in accordance with the provisions of the banking laws
of the United States, or until its franchise becomes forfeited by reason of
violation of law, or until terminated by either a general or a special act of
Congress, or until its affairs be placed in the hands of a receiver and
finally wound up by him.
<PAGE>
EIGHTH. The Board of Directors of this Association, or any
three or more shareholders owning, in the aggregate, not less than ten per
centum of the stock of this Association, may call a special meeting of
shareholders at any time: Provided, however, that unless otherwise provided by
law, not less than ten days prior to the date fixed for any such meeting, a
notice of the time, place and purpose of the meeting shall be given by
first-class mail, postage prepaid, to all shareholders of record of this
Association. These Articles of Association may be amended at any regular or
special meeting of the Shareholders by the affirmative vote of the
shareholders owning at least a majority of the stock of this Association,
subject to the provisions of the banking laws of the United States. The notice
of any shareholders' meeting, at which an amendment to the Articles of
Association of this Association is to be considered shall be given as
hereinabove set forth.
<PAGE>
EXHIBIT 2
CERTIFICATE
TREASURY DEPARTMENT )
Office of ) ss:
Comptroller of the Currency )
I, Thomas G. DeShazo, Deputy Comptroller of the Currency, do hereby certify
that:
Pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., the
Comptroller of the Currency charters and exercises regulatory and supervisory
authority over all national banking associations;
On December 9, 1881, The First National Bank of Ogden, Ogden, Utah was chartered
as a National Banking Association under the laws of the United States and under
Charter No. 2597;
The document hereto attached is a true and complete copy of the Comptroller
Certificate issued to The First National Bank of Ogden, Ogden, Utah, the
original of which certificate was issued by this Office on December 9, 1881;
On October 2, 1922, in connection with a consolidation of The First Bank of
Ogden, Ogden, Utah, and The Utah National Bank of Ogden, Ogden, Utah, the title
was charged to "The First & Utah National Bank of Ogden"; on January 18, 1923,
The First & Utah National Bank of Ogden changed its title to "First Utah
National Bank of Ogden"; on January 19, 1926, the title was changed to "First
National Bank of Ogden"; and on February 24, 1934, the title was changed to
"First Security Bank of Utah, National Association"; and
First Security Bank of Utah, National Association, Ogden, Utah, continues to
hold a valid certificate to do business as a National Banking Association.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused the seal of
Office of the Comptroller of the Currency to
be affixed to these presents at the Treasury
Department, in the City of Washington and
District of Columbia, this fourth day of
April, A.D. 1972.
Thomas G. DeShazo
------------------------------------
Deputy Comptroller of the Currency
<PAGE>
TREASURY DEPARTMENT
Comptroller of the Currency,
Washington, December 9th, 1881
WHEREAS, by satisfactory evidence presented to the undersigned it
has been made to appear that "The First National Bank of Ogden" in
Ogden City in the County of Weber, and Territory of Utah has
complied with all the provisions of the Revised Statutes of the
United States, required to be complied with before an association
shall be authorized to commence the business of Banking. Now,
therefore, I, John Jay Knox, Comptroller of the Currency, do
hereby certify that "The First National Bank of Ogden" in Ogden
City in the County of Weber, and Territory of Utah is authorized
to commence the business of Banking, as provided in Section
Fifty-one hundred and sixty-nine of the Revised Statutes of the
United States.
In testimony whereof, witness my hand and seal of office
this 9th day of December, 1881.
John Jay Knox
--------------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
FEDERAL RESERVE BOARD
WASHINGTON, D.C.
I, S.R. Carpenter, Assistant Secretary of the Federal Reserve
Board, do hereby certify that it appears from the records of the
Federal Reserve Board that:
(1) Pursuant to authority vested in the Federal Reserve
Board by an Act of Congress approved December 23, 1913, known as
the Federal Reserve Act, as amended, the Federal Reserve Board
has heretofore granted to the First National Bank of Ogden,
Ogden, Utah, the right to act when not in contravention of State
or local law, as trustee, executor, administrator, registrar of
stocks and bonds, guardian of estates, assignee, receiver,
committee of estates of lunatics, or in any other fiduciary
capacity in which State banks, trust companies or other
corporations which come into competition with national banks are
permitted to act under the laws of the State of Utah;
(2) On February 24, 1934, the First National Bank of Ogden,
Ogden, Utah, changed its title to First Security Bank of Utah,
National Association, under the provisions of an Act of Congress
approved May 1, 1886, whereby all of the rights, liabilities and
powers of such national bank under its old name devolved upon and
inured to the bank under its new name; and
<PAGE>
(3) Pursuant to the permission heretofore granted by the
Federal Reserve Board to the First National Bank of Ogden, Ogden,
Utah, as aforesaid, and by virtue of the change in the title of
such bank, the First Security Bank of Utah, National Association
has authority to act, when not in contravention of State or local
law, as trustee, executor, administrator, registrar of stocks and
bonds, guardian of estates of lunatics, or in any other fiduciary
capacity in which State banks, trust companies or other
corporations which come into competition with national banks are
permitted to act under the laws of the State of Utah, subject to
regulations prescribed by the Federal Reserve Board.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
caused the seal of the Federal Reserve Board to be affixed at the
City of Washington, in the District of Columbia, on the 1st day
of March, 1934.
S.R. Carpenter
----------------------------------------------------
Assistant Secretary, Federal Reserve Board.
<PAGE>
FEDERAL RESERVE BOARD
WASHINGTON
ADDRESS OFFICIAL CORRESPONDENCE TO
THE FEDERAL RESERVE BOARD
March 1, 1934.
First Security Bank of Utah, National Association,
Ogden, Utah.
Dear Sirs:
Reference is made to the change in the name of the First National
Bank of Ogden, Ogden, Utah, pursuant to the provisions of the Act of May 1,
1886, to First Security Bank of Utah, National Association, and there is
inclosed a certificate issued by the Federal Reserve Board showing the trust
powers heretofore granted to the bank under its former name and that it is
authorized to exercise such powers under its new name.
Very truly yours,
S.R. Carpenter
S.R. Carpenter,
Assistant Secretary.
Enclosure
<PAGE>
[GRAPHIC OMITTED]
- -------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- -------------------------------------------------------------------------------
Licensing Unit (Applications)
50 Fremont Street, Suite 3900
San Francisco, CA 94105
(415) 545-5900, FAX (415) 545-5925
June 20, 1996
Board of Directors
First Security Bank of Utah, N.A.
c/o First Security Corporation
Attn: Brad D. Hardy, EVP
Post Office Box 30006
Salt Lake City, Utah 84130
Re: Merger - First Security Bank of Idaho, N.A.
Boise, Idaho into First Security Bank of Utah,
N.A., Ogden, Utah, under the title of First Security Bank, N.A.,
Ogden, Utah. Control No: 96-WE-02-010
Dear Members of the Board:
This letter is the official certification of the Comptroller of the Currency to
merge First Security Bank of Idaho, National Association, Ogden, Utah, effective
as of June 21, 1996. The resulting bank title is First Security Bank, National
Association and charter number is 2597.
This is also the official authorization given to First Security Bank, National
Association to operate the branches of the target institution and to operate the
main office of the target institution as a branch. Branches of a national bank
target are not listed since they are automatically carried over to the resulting
bank and retain their current OCC branch numbers.
Please be advised that the Charter Certificate for the merged bank, First
Security Bank of Idaho, National Association, must be returned to the Western
District Office for cancellation.
Very truly yours,
Robert G. Tornborg
Robert G. Tornborg
Acting Director of Bank Supervision - Compliance and Analysis
<PAGE>
EXHIBIT 4
BY-LAWS OF THE
FIRST SECURITY BANK,
NATIONAL ASSOCIATION
Organized under the National Banking laws of the United States.
MEETINGS
SECTION 1. Unless otherwise provided by the articles of association a notice
of each shareholder's meeting, setting forth clearly the time, place and purpose
of the meeting, shall be given, by mail, to each shareholder of record of this
bank at least 10 days prior to the date of such meeting. Any failure to mail
such notice or any irregularity therein, shall not affect the validity of such
meeting or of any of the proceedings thereat.
SECTION 2. A record shall be made of the shareholders represented in person
and by proxy, after which the shareholders shall proceed to the transaction of
any business that may properly come before the meeting. A record of the
shareholder's meeting, giving the names of the shareholders present and the
number of shares of stock held by each, the names of the shareholders
represented by proxy and the number of shares held by each, and the names of the
proxies, shall be entered in the records of the meeting in the minute book of
the bank. This record shall show the names of the shareholders and the number of
shares voted for each resolution or voted for each candidate for director.
Proxies shall be secured for the annual meeting alone, shall be dated, and
shall be filed with the records of the meeting. No officer, director,
employee, or attorney for the bank may act as proxy.
The chairman or Secretary of the meeting shall notify the directors-elect
of their election and of the time at which they are required to meet at the
banking house for the purpose of organizing the new board. At the appointed
time, which as closely as possible shall follow their election, the directors-
elect shall convene and organize.
The president or cashier shall then forward to the office of the Comptroller
of the Currency a letter stating that a meeting of the shareholders was held
in accordance with these by-laws, stating the number of shares represented
in person and the number of shares represented by proxy, together with a list
of the directors elected and the report of the appointment and signatures of
officers.
OFFICERS
SECTION 3. Each officer and employee of this bank shall be responsible for
all such moneys, funds, and property of every kind as may be entrusted to care
or otherwise come into his possession, and shall faithfully and honestly
discharge his duties and apply and account for all such moneys, funds, valuables
and other property that may come into his hands as such officer or employee and
pay over and deliver the same to the order of the Board of Directors or to such
person or persons as may be authorized to demand and receive same.
<PAGE>
SECTION 4. If the Board of Directors shall not require separate bonds, it
shall require a blanket bond in an amount deemed by it to be sufficient.
SECTION 5. The following is an impression of the seal adopted by the Board
of Directors of this bank: (Here in the original resolution was imprinted
the Association's seal).
SECTION 6. The various branches of this bank shall be open for business
during such hours as shall be customary in the vicinity, or as shall be fixed,
as to any branch, by the clearing house association of which such branch shall
be a member.
SECTION 7. The regular meeting of the board of directors shall be held on
the first Wednesday after the first Tuesday of each month. When any regular
meeting of the board of directors falls upon a holiday, the meeting shall be
held on such other day as the board may previously designate. Special meetings
may be called by the president, any vice-president, the secretary or the
cashier, or at the request of three or more directors.
MINUTE BOOK
SECTION 8. The organization papers of this bank, the returns of the
elections, the proceedings of all regular and special meetings of the directors
and of the shareholders, the by-laws and any amendments thereto, and reports of
the committees of directors shall be recorded in the minute book; and the
minutes of each meeting shall be signed by the chairman and attest by the
secretary of the meeting.
TRANSFERS OF STOCK
SECTION 9. The stock of this bank shall be assignable and transferable only
on the books of this bank, subject to the restrictions and provisions of the
national banking laws; and a transfer book shall be provided in which all
assignments and transfers of stock shall be made.
SECTION 10. Certificates of stock, signed by the president or vice-
president, and the secretary or the cashier or any assistant cashier, may be
issued to shareholders, and when stock is transferred the certificates thereof
shall be returned to the association, cancelled, preserved, and new certificates
issued. Certificates of stock shall state upon the face thereof that the stock
is transferable only upon the books of the association, and shall meet the
requirements of section 5139, United States Revised Statutes, as amended.
EXPENSES
SECTION 11. All the current expenses of the bank shall be paid by the
cashier, except that the current expenses of each branch shall be paid by the
manager thereof; and such officer shall, every six months, or more often if
required, make to the board a report thereof.
EXAMINATIONS
SECTION 12. There shall be appointed by the board of directors a committee
of three members, exclusive of the active officers of the bank, whose duty it
shall be to examine, at least once in each period of eighteen months, the
affairs of each branch as well as the head office of the association, count its
cash, and compare its assets and liabilities with the accounts of the general
ledgers, ascertain whether the accounts are
<PAGE>
correctly kept and that the condition of the bank corresponds therewith, and
whether the bank is in a sound and solvent condition, and to recommend to the
board such changes in the manner of doing business, etc., as shall seem to be
desirable, the result of which examination shall be reported in writing to the
board at the next regular meeting thereafter, provided that the appointment of
such committee and the examinations by it may be dispensed with if the board
shall cause such examination to be made and reported to the bord by accountants
approved by it.
CHANGES IN BY-LAWS
SECTION 13. These by-laws may be changed or amended by the vote of a
majority of the directors at any regular or special meeting of the board,
provided, however, that the directors shall have been given 10 days notice
of the intention to change or offer an amended thereto.
REPEAL
SECTION 14. All by-laws heretofore adopted are repealed.
