AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 18, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TEJAS GAS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0263364
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1301 MCKINNEY ST., SUITE 700
HOUSTON, TEXAS 77010
(713) 658-0509
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
P. ANTHONY LANNIE
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
TEJAS GAS CORPORATION
1301 MCKINNEY ST., SUITE 700
HOUSTON, TEXAS 77010
(713) 658-0509
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
NICOLAS J. EVANOFF JOHN F. WOMBWELL
BAKER & BOTTS, L.L.P. ANDREWS & KURTH, L.L.P.
3000 ONE SHELL PLAZA 4200 TEXAS COMMERCE TOWER
HOUSTON, TEXAS 77002-4995 HOUSTON, TEXAS 77002
(713) 229-1234 (713) 220-4200
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are 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 interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) OFFERING PRICE(2) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(3)...................
- -------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.25
per share(4).......................
- -------------------------------------------------------------------------------------------------------------------------
Total...................... $400,000,000 100% $400,000,000 $137,931
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</TABLE>
(1) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $400,000,000. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
(3) Subject to Footnote (2), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant. If any such Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price of
up to $400,000,000.
(4) Subject to Footnote (2), there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold from time to
time by the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock as may be issuable upon
conversion of the Debt Securities. Includes the preferred stock purchase
rights associated with the Common Stock. As no separate consideration is
payable for such rights, the registration fee for such securities is
included in the fee for the Common Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
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* *
* 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 JUNE 18, 1996
PROSPECTUS
$400,000,000
TEJAS GAS CORPORATION
DEBT SECURITIES
COMMON STOCK
------------------------
Tejas Gas Corporation (the "Company") may offer from time to time its
unsecured debt securities consisting of notes, debentures or other evidences of
indebtedness (the "Debt Securities"). The Company may also offer and sell from
time to time shares of Common Stock, par value $0.25 per share (the "Common
Stock"), of the Company. The aggregate initial offering price of the Debt
Securities and the Common Stock to be offered by the Company hereby (the
"Securities") will not exceed $400,000,000 or, if applicable, the equivalent
thereof in any other currency or currency unit. The Securities may be offered as
separate series in amounts, at prices and on terms to be determined in light of
market conditions at the time of sale and set forth in a Prospectus Supplement.
The terms of each series of Debt Securities, including, where applicable,
the specific designation, aggregate principal amount, authorized denominations,
maturity, rate or rates and time or times of payment of any interest, any terms
for optional or mandatory redemption, which may include redemption at the option
of holders upon the occurrence of certain events, or payment of additional
amounts or any sinking fund provisions, any provisions with respect to
conversion (in the case of Debt Securities that may be convertible into Common
Stock of the Company), any initial public offering price, the net proceeds to
the Company and any other specific terms in connection with the offering and
sale of such series (the "Offered Securities") will be set forth in a
Prospectus Supplement. As used herein, the Debt Securities shall include
securities denominated in United States dollars, or, at the option of the
Company if so specified in an applicable Prospectus Supplement, in any other
currency or currency unit, or in amounts determined by reference to an index.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution". If any agents of the Company or any underwriters
are involved in the sale of any Securities in respect of which this Prospectus
is being delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement. The net
proceeds to the Company from such sale also will be set forth in a Prospectus
Supplement.
The Common Stock is listed on the New York Stock Exchange under the Symbol
TEJ. Any Common Stock offered will be listed, subject to notice of issuance, on
such exchange.
SEE "RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN EVALUATING AN
INVESTMENT IN THE SECURITIES.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
------------------------
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 PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1996.
<PAGE>
NO DEALERS, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING COVERED
BY THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT. IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL, OR A SOLICITATION OF ANY
OFFER TO BUY, ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION WHERE, OR
TO ANY PERSON WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
PAGE
----
Available Information................... 3
Incorporation of Certain Documents by
Reference............................. 3
The Company............................. 5
Risk Factors............................ 7
Use of Proceeds......................... 9
Ratio of Earnings to Fixed Charges...... 9
Description of Debt Securities.......... 9
Description of Capital Stock............ 15
Certain Anti-takeover Provisions........ 15
Plan of Distribution.................... 18
Legal Matters........................... 19
Experts................................. 19
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IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
AVAILABLE INFORMATION
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 reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission, 450
Fifth Street, NW, Judiciary Plaza, Washington, D.C. 20549; and at the following
regional offices of the Commission: 7 World Trade Center, New York, New York
10048; and Northwestern Atrium Center, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, at prescribed rates. The Commission maintains an
Internet web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission (http://www.sec.gov). The Company's Common Stock, depositary shares
(the "9.96% Depositary Shares"), each representing a one-tenth interest in a
share of 9.96% Cumulative Preferred Stock, par value $1.00 per share (the
"9.96% Preferred Stock"), and depositary shares (the "5% Depositary
Shares"), each representing a one-fifth interest in a share of 5% Convertible
Preferred Stock, par value $1.00 per share (the "5% Preferred Stock"), are
listed on the New York Stock Exchange and such reports, proxy statements and
other information may be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Commission under the Securities Act
with respect to the securities offered hereby. As permitted by the rules and
regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement, and reference is made to the
Registration Statement for further information with respect to the Company and
the securities offered hereby. Statements contained herein concerning the
provisions of any contract, agreement or any other document or exhibit to the
Registration Statement or otherwise filed with the Commission are not
necessarily complete; with respect to each such contract, agreement or document
filed as an exhibit to the Registration Statement, reference is made to the
exhibit for a more complete description of the matter involved, and each such
statement shall be deemed qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act (File No. 0-17389), are incorporated in
this Prospectus by reference and shall be deemed to be a part hereof:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995;
(2) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996;
(3) the Company's Current Report on Form 8-K filed June 18, 1996;
(4) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed on December 3, 1992, as amended by
Forms 8-A/A filed on September 17, 1993 and March 18, 1994, as such
Registration Statement may be further amended from time to time for the
purpose of updating, changing or modifying such descriptions;
(5) the description of the Company's preferred stock purchase rights
associated with the Common Stock contained in the Company's Registration
Statement on Form 8-A filed on November 14, 1994, as such Registration
Statement may be amended from time to time for the purpose of updating,
changing or modifying such description;
(6) the description of the 9.96% Depositary Shares and the 9.96%
Preferred Stock contained in the Company's Registration Statement on Form
8-A filed on January 13, 1993, as amended by Form 8-A/A filed on March 25,
1993, as such Registration Statement may be further amended from time to
time for the purpose of updating, changing or modifying such description;
(7) the description of the 5% Depositary Shares and the 5% Preferred
Stock contained in the Company's Registration Statement on Form 8-A filed
on September 27, 1993, as amended by Forms 8-A/A filed on November 1, 1993
and December 23, 1993, as such Registration Statement may be
3
further amended from time to time for the purpose of updating, changing or
modifying such description; and
(8) the Rights Agreement, dated as of November 11, 1994, between the
Company and Harris Trust and Savings Bank, which includes the Certificate
of Designation for the Series C Junior Participating Preferred Stock as
Exhibit A, the form of Right Certificate as Exhibit B, and the Summary of
Rights to Purchase Preferred Shares as Exhibit C (filed as Exhibit 1 to the
Company's Form 8-K dated November 11, 1994).
All documents filed by the Company with the Commission pursuant to sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made hereby (by the
filing of a post-effective amendment to the Registration Statement which
indicates that all securities offered hereby have been sold, or which
deregisters all securities then remaining unsold) shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such document. Any statement contained 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 that also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus is delivered,
upon the written or oral request of such person, a copy of any or all documents
that have been incorporated herein by reference (not including exhibits to the
documents that have been incorporated herein by reference unless such exhibits
are specifically incorporated by reference in the documents which this
Prospectus incorporates). Requests should be directed to James W. Whalen,
Executive Vice President, Chief Financial Officer and Treasurer, Tejas Gas
Corporation, 1301 McKinney, Suite 700, Houston, Texas 77010 (telephone: (713)
658-0509).
4
THE COMPANY
GENERAL
The Company is a major intrastate natural gas pipeline company engaged in
the business of purchasing, gathering, processing, treating, transporting and
marketing natural gas. The Company's operations are situated primarily in the
major gas-producing areas in South Texas, East Texas, the Texas and Louisiana
Gulf Coast regions and Oklahoma, with additional facilities located in West
Virginia. The Company is a holding company that conducts operations through four
principal subsidiaries, Tejas Gas Corp. ("Tejas Gas"), Acadian Gas Corporation
("Acadian"), Tejas Natural Gas Company ("TNGC") and, since June 1996,
Transok, Inc. ("Transok"). See "-- Transok Acquisition." Tejas-Acadian
Holding Company ("TAHC"), a wholly owned subsidiary of the Company, was
organized in December 1994 and owns the capital stock of each of Tejas Gas,
Acadian and TNGC. Tejas Transok Holding Company ("TTHC"), a wholly owned
subsidiary of the Company, was organized in June 1996 and owns all of the
capital stock of Transok. Tejas Alliance Holding Company ("TALHC"), a wholly
owned subsidiary of the Company, was organized in July 1995 to hold an interest
in Coral Energy Resources, L.P. ("Coral"), an energy marketing joint venture
with Shell Oil Company ("Shell"). Unless the context indicates otherwise,
references to the "Company" are to Tejas Gas Corporation, TAHC, Tejas Gas,
Acadian, TNGC, Transok and TALHC and their respective subsidiaries.
The Company is one of the largest independent intrastate gatherers and
transporters of natural gas volumes through company-owned pipelines in the
United States. The Company had an average throughput of 3.2 BCF of natural gas
per day ("BCF/d") in its natural gas sales, transportation and processing
activities in 1995 and 3.5 BCF/d in the first quarter of 1996. Transok's average
throughput was 1.4 BCF/d in 1995 and 1.3 BCF/d in the first quarter of 1996.
As of June 6, 1996, following the Transok acquisition, the Company owned
and/or operated intrastate pipeline systems collectively comprising
approximately 12,000 miles of pipeline including interests in nine joint venture
pipelines. The Company's pipeline systems consist of main lines, lateral lines
and gathering lines and have approximately 290 interconnections with both
interstate and intrastate pipelines in Texas, Oklahoma and Louisiana. Through
these interconnections, the Company can access natural gas supplies from sources
not directly connected to its pipelines and deliver natural gas to those
customers who are outside of the Company's geographical area of pipeline
operations.
The Company owns underground natural gas storage facilities in Texas and
Oklahoma and leases an underground natural gas storage facility in Louisiana.
These facilities have a combined storage capacity of 155 BCF and a withdrawal
capacity of 1.1 BCF/d.
The Company operates nine owned and seven leased natural gas processing
plants, which have a combined processing capacity of more than 725 million cubic
feet of natural gas per day and more than 50,000 barrels of natural gas liquids
per day.
In November 1995, Coral, a natural gas and energy marketing venture between
the Company and Shell, commenced operations. Coral is owned one-third by
subsidiaries of the Company and two-thirds by subsidiaries of Shell. The Company
and Shell have each contributed cash and economic interests in natural gas sales
contracts to Coral for their respective interests. Each partner has received
equity credit for natural gas committed to the partnership that is subject to
long-term contracts, and natural gas volumes and margins are subject to make-up
payments by the responsible partner if actual volumes and margins fail to meet
targeted contract levels.
The Company, a Delaware corporation, was organized on September 16, 1988 by
Hamilton Oil Corporation ("HOC") for the purpose of holding the capital stock
of Tejas Gas, which had been an indirect, wholly owned subsidiary of HOC or its
predecessor since 1979. Tejas Gas has been engaged in natural gas pipeline
operations and related activities since its inception in 1967. On July 1, 1988,
Tejas Gas purchased all of the outstanding capital stock of Gulf Energy Holding,
Inc., another company engaged through subsidiaries in natural gas pipeline
operations, principally in Texas. On December 27, 1988, the Company's capital
stock was distributed to the stockholders of HOC in the form of a spin-off. On
5
December 28, 1990, the Company purchased through Acadian, a wholly owned
subsidiary, all of the capital stock of several corporations comprising the
Acadian Gas Group, a group of companies engaged in natural gas pipeline
operations, principally in Louisiana. On September 15, 1993, the Company,
through a newly formed wholly owned subsidiary, TNGC, acquired from Exxon
substantially all of Exxon's Texas and Louisiana intrastate natural gas pipeline
operations as well as a significant natural gas storage facility. In January
1995, the Company transferred the capital stock of Tejas Gas, Acadian and TNGC
to its wholly owned subsidiary, TAHC, in connection with the amendment and
consolidation of the Company's credit facilities. The Company, through
subsidiaries of TALHC, holds a one-third interest in Coral, a natural gas
marketing venture. In June 1996, the Company, through a subsidiary of TTHC,
acquired Transok, an intrastate natural gas pipeline operator and gas processor
with assets located primarily in Oklahoma, from Central and South West
Corporation ("CSW").
The executive offices of the Company are located at 1301 McKinney, Suite
700, Houston, Texas 77010, and its telephone number is (713) 658-0509.
TRANSOK ACQUISITION
On June 6, 1996, Tejas acquired Transok from CSW through a merger of a
recently formed wholly owned subsidiary of Tejas into Transok pursuant to an
Agreement of Merger dated May 9, 1996, between Tejas and CSW, as amended.
Immediately prior to the acquisition, Transok sold seven gas processing plans
(the "Transok Plants") to a third party lessor (the "Lessor"), which in turn
leased these facilities to the Company.
Transok, which was founded in 1955, operates intrastate natural gas
pipeline systems in Oklahoma, Louisiana and Texas and is the largest processor
of natural gas in Oklahoma. Transok's operations include (i) more than 6,500
miles of gathering and transmission pipelines in Oklahoma, Louisiana and Texas
with 2.3 BCF/d of pipeline capacity; (ii) eight operating processing plants, of
which seven are leased, with total capacity of 564 million cubic feet per day
("Mmcf/d") of natural gas; (iii) a 26 BCF-capacity natural gas reservoir storage
facility with 300 Mmcf/d of withdrawal and 200 Mmcf/d of injection capacity; and
(iv) 1.4 trillion cubic feet of connected third-party natural gas reserves.
Transok's average system throughput was 1.3 BCF/d during the first quarter of
1996 and 1.4 BCF/d in 1995. Liquids production was 25,100 barrels per day during
the first quarter of 1996 and 22,400 barrels per day in 1995.
The total purchase price received by CSW at closing was $690 million in
cash, of which $565 million was paid by Tejas and $125 million was paid by the
Lessor to acquire the Transok Plants. In addition, as part of the transaction,
Transok retained $200 million of long-term debt. Tejas' financing for its cash
requirements consisted of (i) $178 million borrowed under an existing credit
facility of a wholly owned Tejas subsidiary and (ii) $387 million, net of a
voluntary prepayment, borrowed under a new $425 million credit facility arranged
by Bank of Montreal and Canadian Imperial Bank of Commerce. The Lessor is
leasing the Transok Plants to the Company for a five-year term with annual lease
payments of approximately $9 million. The lease agreement may be extended by the
Company, with approval by the Lessor, and provides the Company the option to
purchase the Transok Plants during the term. The option to purchase all of the
Transok Plants is exercisable for $125 million. If such purchase option is not
exercised, the Company will be obligated to pay the Lessor a termination fee of
approximately $106 million at the end of the lease. However, such fee will be
reduced by the excess, if any, of the proceeds from the Lessor's sale of the
assets over $19 million. The lease also provides Tejas the option at any time
during the term to purchase such number of the Transok Plants as may be
purchased for an amount not exceeding approximately $31 million, with
corresponding reductions in the $106 million termination fee and $19 million
threshold amount. Tejas estimates that transaction costs associated with the
merger and related financings will total approximately $13 million.
6
RISK FACTORS
IN EVALUATING THE COMPANY AND ITS BUSINESS, PROSPECTIVE INVESTORS SHOULD
CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS IN ADDITION TO THE OTHER
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN.
INDEBTEDNESS, LEVERAGE AND OTHER COMMITMENTS
In connection with the Transok acquisition, the Company borrowed (i) $178
million under an existing credit facility of a wholly owned Tejas subsidiary and
(ii) $387 million, net of a voluntary prepayment, under a new $425 million
credit facility arranged by Bank of Montreal and Canadian Imperial Bank of
Commerce. Transok had outstanding at the time of the acquisition $200 million
principal amount of medium-term notes, which remained in place following its
merger with a Tejas subsidiary. As of June 6, 1996, the Company's total debt was
approximately $1.0 billion, including debt incurred or assumed in connection
with the Transok acquisition. In addition, immediately prior to the acquisition,
an unrelated third party paid $125 million to Transok for certain gas processing
assets and is leasing these assets to the Company as described above for an
annual lease payment of approximately $9 million. See "The Company -- Transok
Acquisition." The Company is also committed to (i) maintain certain natural gas
volumes in one of its storage facilities, for which it pays a third party
supplier an estimated annual reservation fee of approximately $1.2 million, (ii)
make preferred distributions to a third party of approximately $9 million
annually through 2003 in connection with such party's capital investment in a
subsidiary of the Company and (iii) make annual rent payments of approximately
$8.4 million through September 1998 pursuant to a lease of certain pipeline
facilities. In connection with the pipeline lease, the Company has the option to
purchase the facilities for approximately $144.5 million at the end of the term
or pay a termination fee of approximately $122.8 million, subject to certain
reductions. This indebtedness and these other obligations create a risk that the
Company may be unable to service its indebtedness and pay dividends on its
5 1/4% Preferred Stock and 9.96% Preferred Stock. While the Company does not
anticipate that it will be unable to service such indebtedness or pay such
dividends, there can be no assurance in that regard.
RELIANCE ON FUNDS FROM OPERATING SUBSIDIARIES; RESTRICTIONS ON DISTRIBUTIONS;
DIVIDENDS
The ability of the Company, as a holding company, to pay dividends on the
Common Stock will be dependent upon the payment of dividends or interest by, or
the availability of other funds from, its subsidiaries. Effective January 12,
1995, the Company amended its credit facilities to roll-up a majority of the
existing bank debt of its three principal operating subsidiaries into a single,
$455.0 million, eight-year revolving credit facility at a newly-formed
subsidiary, TAHC. Effective June 6, 1996, the Company established a new $425.0
million, revolving credit facility that matures December 31, 1997 in connection
with the Transok acquisition. The TAHC and Transok credit facilities and the
other subsidiary credit facilities restrict the amount of distributions that may
be made by the subsidiaries to the Company.
The Company does not currently intend to pay regular cash dividends on the
Common Stock. This policy will be reviewed by the Board of Directors of the
Company from time to time in light of, among other things, the Company's
earnings and financial position, capital requirements and limitations imposed by
its bank loan agreements. No dividend or distribution may be declared or paid
on, and no payment may be made on account of the purchase, redemption or
retirement of, the Common Stock unless and until all cumulative dividends on the
5% Preferred Stock and the 9.96% Preferred Stock have been declared and either
paid or funds therefor set aside for payment.
RISK OF INABILITY TO INTEGRATE TRANSOK OPERATIONS
Although the Company has previously integrated relatively large
acquisitions and expects to integrate the operations of Transok with its
existing operations, there can be no assurance that its efforts to do so will be
successful. The failure to successfully integrate Transok could adversely affect
the Company's operating results.
7
SENSITIVITY TO SHORT-TERM SUPPLY AND SALES CONTRACTS
Currently, the Company purchases, and Coral Energy Resources, L.P., a
marketing joint venture between the Company and Shell Oil Company, resells
natural gas primarily under short-term contracts, which are subject to
renegotiation of prices and volumes, usually on a monthly basis. Although this
affords the Company greater flexibility in responding to changing market
conditions, supplies and markets under such contracts are not assured. In
addition, the profitability of short-term sales is strongly influenced by the
balance of supply and demand in the marketplace. For example, excess supplies in
relation to demand may cause significant competition for available markets,
which, in turn, may result in depressed profit margins for short-term sales.
ABILITY OF PRINCIPAL STOCKHOLDERS TO EXERCISE CONTROL
As of May 31, 1996, the amount of the Common Stock controlled by members of
the Board of Directors of the Company or their affiliates was approximately 25%.
Such stockholders, if they vote together, may be able to materially influence
the outcome of all matters submitted to a vote of the Company's stockholders.
POTENTIAL LIABILITY UNDER TAKE-OR-PAY CONTRACTS; LITIGATION
The Company is a party to certain natural gas purchase contracts containing
take-or-pay provisions, which require the Company to take a minimum amount of
natural gas or pay for such minimum quantities if not taken. The Company is a
defendant in a take-or-pay lawsuit, THE LONG TRUSTS V. TEJAS GAS CORP. ET. AL.,
in which the plaintiffs in their pleadings have alleged damages in excess of $36
million (including prejudgment interest) against the Company. In connection with
depositions taken for the suit, certain expert witnesses retained by The Long
Trusts have presented damage models purporting to show substantial additional
damages related to take-or-pay claims and claims that plaintiffs were prevented
by actions of the Company from producing gas ratably with other producers in a
common reservoir. Management disputes The Long Trusts' claims and believes that
the Long Trusts' damage models are seriously flawed. In addition, the Company is
a defendant in various lawsuits that have arisen in the ordinary course of
business. Although the Company has not obtained any formal opinion, based on
discussions with outside counsel and an internal examination of such lawsuits,
management believes that it has adequate defenses or recourse to third parties
relating to such lawsuits and does not believe these matters will have a
material adverse effect on the Company's financial condition.
COMPETITION
The Company has numerous competitors in its geographic area of operations,
many of which are larger pipeline companies with more extensive pipeline
networks and greater capital resources. Accordingly, for the Company to remain
competitive it must continually meet or exceed such competitors' ability to
offer reliable services and competitive pricing. The Company also faces varying
degrees of competition from the use of energy sources, such as electricity, coal
and oil. In addition, excess industry wide supplies in relation to demand will
cause increased competition for available markets.
SEASONAL AND WEATHER VARIATIONS RESULT IN FLUCTUATIONS IN THROUGHPUT, REVENUES
AND EARNINGS
The Company's natural gas sales are affected by seasonal changes in demand
for natural gas because of weather. The Company has its greatest demands during
the winter heating season and the summer air-conditioning season so that greater
volumes, revenues and earnings from operations are usually experienced during
those periods of the year. Variations in extremes of weather from year to year
in the past resulted in significant variations in the Company's natural gas
throughput, revenues and earnings for those years.
NO ASSURANCE OF CONTINUED EXPANSION OPPORTUNITIES OR CONTINUED AVAILABILITY OF
FINANCING
In order for the Company to expand its business by acquiring additional
gathering and pipeline systems through either the purchase or construction of
new facilities, the Company will be required to identify
8
expansion opportunities and to finance such activities, using either equity or
debt financing, or a combination thereof. No assurance can be given that
appropriate opportunities for expansion at levels of profitability comparable to
existing operations can be obtained or that financing on terms acceptable to the
Company can be obtained.
RISK OF ADDITIONAL COSTS AND LIABILITIES RELATED TO ENVIRONMENTAL AND SAFETY
REGULATIONS AND CLAIMS
The pipeline operations of the Company are subject to various federal,
state and local environmental, safety, health and other laws, which can increase
the cost of planning, designing, installing and operating such facilities. There
can be no assurance that costs and liabilities relating to compliance will not
be incurred in the future. Moreover, it is possible that other developments,
such as increasingly strict environmental and safety laws, regulations and
enforcement policies thereunder, and claims for damages to property or persons
resulting from the Company's operations, could result in additional costs to and
liabilities of the Company.
USE OF PROCEEDS
Except as otherwise described in any Prospectus Supplement or any Pricing
Supplement, the net proceeds from the sale of Securities will be used for
general corporate purposes, which may include refinancings of indebtedness,
working capital, capital expenditures, acquisitions and repurchases and
redemptions of Securities.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
QUARTER ENDED
<PAGE>
MARCH 31, YEARS ENDED DECEMBER 31,
-------------- -----------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------ ----- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges... 3.17 2.55 2.49 2.37 2.71 1.83 1.58
</TABLE>
For purposes of calculating the ratios of earnings to fixed charges
"earnings" represent income from continuing operations before interest charges
and before federal and state income taxes. "Fixed charges" represent the sum
of interest charges (whether expensed or capitalized), and the portion of rental
expense representative of an interest factor.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate ("Offered Debt Securities"). The particular terms of the Offered
Debt Securities and the extent to which such general provisions may apply will
be described in a Prospectus Supplement relating to such Offered Debt
Securities.
The Debt Securities will be general unsecured obligations of the Company
and will be issued under an Indenture (the "Indenture"), between the Company
and Texas Commerce Bank, N.A., as trustee (the "Trustee"). The statements
under this caption relating to the Debt Securities and the Indenture are
summaries only and do not purport to be complete. Such summaries make use of
terms defined in the Indenture. Wherever such terms are used herein or
particular provisions of the Indenture are referred to, such terms or
provisions, as the case may be, are incorporated by reference as part of the
statements made herein, and such statements are qualified in their entirety by
such reference. Certain defined terms in the Indenture are capitalized herein.
The italicized parenthetical references below refer to the section numbers in
the Indenture, unless otherwise indicated.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which can be issued thereunder and provides that Debt Securities may
be issued from time to time thereunder in one or more series, each in an
aggregate principal amount authorized by the Company prior to issuance. The
Indenture
9
does not limit the amount of other unsecured indebtedness or securities which
may be issued by the Company.
Unless otherwise indicated in a Prospectus Supplement, the Debt Securities
will not benefit from any covenant or other provision that would afford Holders
of such Debt Securities special protection in the event of a highly leveraged
transaction involving the Company.
Reference is made to the Prospectus Supplement for the following terms of
the Offered Debt Securities, which will be issued in registered form: (i) the
title and aggregate principal amount of the Offered Debt Securities; (ii) the
date or dates on which the Offered Debt Securities will mature; (iii) the rate
or rates (which may be fixed or variable) per annum, if any, at which the
Offered Debt Securities will bear interest or the method of determining such
rate or rates; (iv) the date or dates from which such interest, if any, will
accrue and the date or dates at which such interest, if any, will be payable;
(v) the terms for redemption or early payment, if any, including any mandatory
or optional sinking fund or analogous provision; (vi) the terms for conversion
or exchange, if any, of the Offered Debt Securities; (vii) whether such Offered
Debt Securities will be issued in the form of one or more global securities and
whether such global securities are to be issuable in temporary global form or
permanent global form; (viii) if other than U.S. dollars, the currency,
currencies or currency unit or units in which such Offered Debt Securities will
be denominated and in which the principal of, and premium and interest, if any,
on, such Offered Debt Securities will be payable; (ix) whether, and the terms
and conditions on which, the Company or a Holder may elect that, or the other
circumstances under which, payment of principal of, or premium or interest, if
any, on, such Offered Debt Securities is to be made in a currency or currencies
or currency unit or units other than that in which such Offered Debt Securities
are denominated; and (x) any other specific terms of the Offered Debt
Securities. Reference is also made to the Prospectus Supplement for information
with respect to any additional covenants that may be included in the terms of
the Offered Debt Securities. (SECTION 301)
No service charge will be made for any registration of transfer or exchange
of the Debt Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
(SECTION 305)
To the extent the Company conducts its operations through Subsidiaries, the
Holders of Debt Securities will have a junior position to any creditors of the
Company's Subsidiaries.
Offered Debt Securities may be sold at a discount (which may be
substantial) below their stated principal amount bearing no interest or interest
at a rate which at the time of issuance is below market rates. Any material
United States federal income tax consequences and other special considerations
applicable thereto will be described in the Prospectus Supplement relating to
any such Offered Debt Securities.
If any of the Offered Debt Securities are sold for any foreign currency or
currency unit or if the principal of, or premium or interest, if any, on any of
the Offered Debt Securities is payable in any foreign currency or currency unit,
the restrictions, elections, tax consequences, specific terms and other
information with respect to such Offered Debt Securities and such foreign
currency or currency unit will be set forth in the Prospectus Supplement
relating thereto.
EVENTS OF DEFAULT
Unless otherwise provided with respect to any series of Debt Securities,
the following are Events of Default under the Indenture with respect to the Debt
Securities of such series issued under such Indenture: (a) failure to pay
principal of (or premium, if any, on) any Debt Security of such series when due;
(b) failure to pay any interest on any Debt Security of such series when due,
continued for 30 days; (c) failure to deposit any mandatory sinking fund
payment, when due, in respect of the Debt Securities of such series, continued
for 30 days; (d) failure to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture for the benefit of a
series of Debt Securities other than such series), continued for 90 days after
written notice as provided in the Indenture; (e) certain events of bankruptcy,
insolvency or reorganization; and (f) any other Event of Default as may be
specified with respect to Debt Securities of such series. (SECTION 501) If an
Event of Default with respect to any
10
outstanding series of Debt Securities occurs and is continuing, either the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Debt Securities of such series (in the case of an Event of Default described in
clause (a), (b), (c) or (f) above) or at least 25% in principal amount of all
outstanding Debt Securities under the Indenture (in the case of other Events of
Default) may declare the principal amount of all the Debt Securities of the
applicable series (or of all outstanding Debt Securities under the Indenture, as
the case may be) to be due and payable immediately. At any time after a
declaration of acceleration has been made, but before a judgment has been
obtained, the Holders of a majority in principal amount of the outstanding Debt
Securities of such series (or of all outstanding Debt Securities under the
applicable Indenture, as the case may be) may, under certain circumstances,
rescind and annul such acceleration. (SECTION 502) Depending on the terms of
other indebtedness of the Company outstanding from time to time, an Event of
Default under the Indenture may give rise to cross defaults on such other
indebtedness of the Company.
The Indenture provides that the Trustee will within 90 days after the
occurrence of a default in respect of any series of Debt Securities, give to the
Holders of the Debt Securities of such series notice of all uncured and unwaived
defaults known to it, provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or any interest on, or
any sinking fund installment with respect to, any Debt Securities of such
series, the Trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Debt Securities of such series; and provided, further, that such
notice shall not be given until at least 30 days after the occurrence of a
default in the performance, or breach, of any covenant or warranty of the
Company under such Indenture other than for the payment of the principal of (or
premium, if any) or any interest on, or any sinking fund installment with
respect to, any Debt Securities of such series. For the purpose of this
provision, "default" with respect to Debt Securities of any series means any
event which is, or after notice or lapse of time, or both, would become, an
Event of Default with respect to the Debt Securities of such Series. (SECTION
602)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the Indenture) have the right, subject to certain limitations, 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 Debt Securities of such series (or of all outstanding Debt
Securities under the Indenture). (SECTION 512) The Indenture provides that in
case an Event of Default shall occur and be continuing, the Trustee shall
exercise such of its rights and powers under the applicable Indenture and use
the same degree of care and skill in its exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(SECTION 601) Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request of any of the Holders of the Debt Securities unless they 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. (SECTION 603)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the Indenture) may on behalf of the Holders of all Debt Securities of such
series (or of all outstanding Debt Securities under the Indenture) waive any
past default under the Indenture, except a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security or in respect
of a provision which under the applicable Indenture cannot be modified or
amended without the consent of the Holder of each outstanding Debt Security
affected. (SECTION 513) The Holders of a majority in principal amount of the
outstanding Debt Securities affected thereby may on behalf of the Holders of all
such Debt Securities waive compliance by the Company with certain restrictive
provisions of the Indenture. (SECTION 1006)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under each
Indenture and as to any default in such performance. (SECTION 1005)
11
MODIFICATION
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in principal
amount of the outstanding Debt Securities under the Indenture affected thereby;
provided, however, that no such modification or amendment may, without the
consent of the Holder of each outstanding Debt Security affected thereby, (a)
change the stated maturity date of the principal of, or any installment of
interest on, any Debt Security, (b) reduce the principal amount of, or the
premium (if any) or interest on, any Debt Security, (c) change the place or
currency, currencies, or currency unit or units of payment of principal of, or
premium (if any) or interest on, any Debt Security, (d) impair the right to
institute suit for the enforcement of any payment on or with respect to any Debt
Security or (e) reduce the percentage in principal amount of outstanding Debt
Securities the consent of the Holders of which is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults. (SECTION 902)
The Indenture provides that the Company and the Trustee may, without the
consent of any Holders of Debt Securities, enter into supplemental indentures
for the purposes, among other things, of adding to the Company's covenants,
adding additional Events of Default, establishing the form or terms of Debt
Securities or curing ambiguities or inconsistencies in the Indenture, provided
that such action to cure ambiguities or inconsistencies shall not adversely
affect the interests of the Holders of the Debt Securities in any material
respect.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of outstanding Debt
Securities, may consolidate with or merge into, or convey, transfer or lease its
assets substantially as an entirety to, any Person, provided that (i) the Person
formed by such consolidation or into which the Company is merged or which
acquires or leases the assets of the Company substantially as an entirety is a
Person which assumes by supplemental indenture the Company's obligations on the
Debt Securities and under the Indenture, (ii) after giving effect to the
transaction, no Event of Default and no event which, after notice or lapse of
time or both, would become an Event of Default shall have occurred and be
continuing, and (iii) certain other conditions are met. Upon compliance with
these provisions by a successor Person, the Company will (except in the case of
a lease) be relieved of its obligations under the Indenture and the Debt
Securities. (ARTICLE EIGHT)
DISCHARGE AND DEFEASANCE
The Company may terminate its obligations under the Indenture, other than
its obligation to pay the principal of (and premium, if any) and interest on the
Debt Securities of any series and certain other obligations, if it (i)
irrevocably deposits or causes to be irrevocably deposited with the Trustee as
trust funds money or U.S. Government Obligations maturing as to principal and
interest sufficient to pay the principal of, any interest on, and any mandatory
sinking funds in respect of, all outstanding Debt Securities of such series on
the stated maturity of such payments or on any redemption date and (ii) complies
with any additional conditions specified to be applicable with respect to the
covenant defeasance of Debt Securities of such series. (SECTION 401)
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to each Indenture. In such case, if the Company (i)
irrevocably deposits or causes to be irrevocably deposited money or U.S.
Government Obligations as described above, (ii) makes a request to the Trustee
to be discharged from its obligations on the Debt Securities of such series and
(iii) complies with any additional conditions specified to be applicable with
respect to legal defeasance of Debt Securities of such series, then the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Debt Securities of such series and the obligations of the Company
under the Indenture and the Debt Securities of such series to pay the principal
of (and premium, if any) and interest on the Debt Securities of such series
shall cease, terminate and be completely discharged, and the Holders thereof
shall thereafter be entitled only to payment out of the money or U.S. Government
Obligations deposited with the Trustee as
12
aforesaid, unless the Company's obligations are revived and reinstated because
the Trustee is unable to apply such trust fund by reason of any legal
proceeding, order or judgment. (SECTIONS 403 AND 404)
"U.S. Government Obligations" is defined in the Indenture as direct
noncallable obligations of, or noncallable obligations the payment of principal
of and interest on which is guaranteed by, the United States of America, or to
the payment of which obligations or guarantees the full faith and credit of the
United States of America is pledged, or beneficial interests in a trust the
corpus of which consists exclusively of money or such obligations or a
combination thereof. (SECTION 101)
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities are issuable in definitive form as Registered Debt
Securities. (SECTION 301) Reference is made to the Prospectus Supplement for the
terms relating to the form, exchange, registration and transfer of Debt
Securities issuable in temporary or permanent global forms.
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations.
Registered Debt Securities may be presented for registration of transfer
(with the form of transfer endorsed thereon duly executed), at the office of the
Security Registrar or at the office of any transfer agent designated by the
Company for such purpose with respect to any series of Debt Securities and
referred to in an applicable Prospectus Supplement, without service charge and
upon payment of any taxes and other governmental charges as described in the
Indenture. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the Person making the request. The Company
has appointed the Trustee as Security Registrar. (SECTION 305) If a Prospectus
Supplement refers to any transfer agents (in addition to the Security Registrar)
initially designated by the Company with respect to any series of Debt
Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that, if Debt Securities of a series are issuable
solely as Registered Debt Securities, the Company will be required to maintain a
transfer agent in each Place of Payment for such series. The Company may at any
time designate additional transfer agents with respect to any series of Debt
Securities. (SECTION 1002)
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange Registered Debt Securities of
any series during a period beginning at the opening of business 15 days prior to
the selection of Debt Securities of that series for redemption and ending on the
close of business on the day of mailing of the relevant notice of redemption; or
(ii) register the transfer of or exchange any Registered Debt Security, or
portion thereof, called for redemption, except the unredeemed portion of any
Registered Debt Security being redeemed in part. (SECTION 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Debt Securities will
be made in the designated currency or currency unit at the office of such Paying
Agent or Paying Agents as the Company may designate from time to time, except
that, at the option of the Company, payment of any interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of any installment of interest on Registered Debt
Securities will be made to the Person in whose name such Registered Debt
Security is registered at the close of business on the Regular Record Date for
such interest. (SECTION 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in Houston, Texas will be designated as a
Paying Agent for the Company for payments with respect to Debt Securities which
are issuable solely as Registered Debt Securities. The Company may at any time
designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that the Company will be required to maintain a Paying Agent in each
Place of Payment for such series. (SECTION 1002)
13
All moneys paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed at the end of three years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the Holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof. (SECTION 1003)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued, in whole or in part, in the
form of one or more global Debt Securities that would be deposited with a
depositary or its nominee identified in the applicable Prospectus Supplement.
The specific terms of any depositary arrangement with respect to any portion of
a series of Debt Securities and the rights of, and limitations on, owners of
beneficial interests in any such global Debt Security representing all or a
portion of a series of Debt Securities will be described in the applicable
Prospectus Supplement. (SECTION 204)
MEETINGS
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series. (SECTION 1301) A meeting may be called at any time
by the Trustee, and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given as described under "Notices" below.
(SECTION 1302) Except for any consent that must be given by the Holder of each
Outstanding Debt Security affected thereby, as described under "Modification"
above, any resolution presented at a meeting or adjourned meeting at which a
quorum is present may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series;
provided, however, that, except for any consent that must be given by the Holder
of each Outstanding Debt Security affected thereby, as described under
"Modification" above, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that may be
made, given or taken by the Holders of a specified percentage, which is less
than a majority in principal amount of the Outstanding Debt Securities of a
series, may be adopted at a meeting or adjourned meeting duly reconvened at
which a quorum is present by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Debt Securities of
that series. Subject to the proviso set forth above, any resolution passed or
decision taken at any meeting of Holders of Debt Securities of any series duly
held in accordance with the Indenture will be binding on all Holders of Debt
Securities of that series and any related coupons. The quorum at any meeting
called to adopt a resolution, and at any reconvened meeting, will be Persons
holding or representing a majority in principal amount of the Outstanding Debt
Securities of a series. (SECTION 1304)
NOTICES
Notices to Holders of Registered Debt Securities will be given by mail to
the addresses of such Holders as they appear in the Security Register. (SECTION
107)
THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee, as
a creditor of the Company, to obtain payment of claims in certain cases and to
realize on certain property received with respect to any such claims, as
security or otherwise. (SECTION 613) The Trustee is permitted to engage in other
transactions, except that, if it acquires any conflicting interest (as defined),
it must eliminate such conflict or resign. (SECTION 608)
The Trustee has made loans to the Company and its subsidiaries and
affiliates from time to time in the ordinary course of business and at
prevailing interest rates under agreements with commercial bank groups. In
addition, the Trustee may from time to time serve as a depositary of funds of,
and perform other services for, the Company.
14
DESCRIPTION OF CAPITAL STOCK
The Certificate of Incorporation of the Company, as amended (the
"Charter"), provides that the aggregate number of shares of all classes of
stock that the Company has authority to issue is 36,000,000 shares, divided into
two classes consisting of 30,000,000 shares of Common Stock and 6,000,000 shares
of Preferred Stock. Additional shares of authorized capital stock may be issued
without stockholder approval. The following description of the capital stock of
the Company is intended as a summary only and is qualified in its entirety by
reference to the Charter and the By-Laws of the Company, the Certificate of
Designation for the Company's 9.96% Preferred Stock, the Certificate of
Designation for the Company's 5% Preferred Stock and the Certificate of
Designation for the Company's Series C Junior Participating Preferred Stock.
COMMON STOCK
Each holder of Common Stock is entitled to one vote for each share on all
matters on which stockholders generally are entitled to vote, including
elections of directors, and, except as otherwise required by law or by the terms
of any series of preferred stock of the Company, the holders of Common Stock
exclusively possess all voting power. The Charter does not provide for
cumulative voting for the election of directors; therefore, the holders of a
majority of the voting power of the total number of outstanding shares of Common
Stock are able to elect the entire Board of Directors of the Company.
Subject to any preferential rights of any outstanding series of preferred
stock of the Company designated from time to time by the Board of Directors or,
to the extent permitted by law, a committee of the Board of Directors, the
holders of Common Stock are entitled to such dividends as may be declared from
time to time by the Board of Directors from funds legally available therefor
and, upon liquidation, dissolution or winding up, will be entitled to receive
pro rata all assets of the Company available for distribution to such holders.
No holder of Common Stock has any preemptive right to subscribe to any kind or
class of securities of the Company. As of May 31, 1996, 17,408,651 shares of
Common Stock were issued and outstanding.
PREFERRED STOCK
The Board of Directors is empowered without stockholder approval to issue
up to 6,000,000 shares of preferred stock of the Company, from time to time, in
series and with respect to each series to determine (1) the number of shares
constituting such series, (2) the dividend rate on the shares of each series,
whether such dividends shall be cumulative and the relation of such dividends
payable on any other class or series of stock, (3) whether the shares of each
series shall be redeemable and the terms thereof, (4) whether the shares shall
be convertible into Common Stock and the terms thereof, (5) the amount per share
payable on each series, or other rights of holders of such shares on liquidation
or dissolution of the Company, (6) the voting rights, if any, of shares of each
series and (7) generally, any other rights and privileges consistent with the
Charter for each series and any qualifications, limitations or restrictions. As
of May 31, 1996, the Company had outstanding (a) 200,000 shares of 9.96%
Preferred Stock represented by 20,000 issued and outstanding 9.96% Depositary
Shares and (b) 260,000 shares of 5% Preferred Stock represented by 52,000 issued
and outstanding 5% Depositary Shares. In addition, the Board of Directors has
authorized the issuance of up to 300,000 shares of Series C Junior Participating
Preferred Stock pursuant to a stockholder rights plan, none of which are
outstanding. See "Certain Anti-takeover Provisions -- Stockholder Rights
Plan."
CERTAIN ANTI-TAKEOVER PROVISIONS
The Charter and By-laws of the Company contain provisions which may have
the effect of delaying, deferring or preventing a change in control. The
following description of certain provisions of the Charter and By-laws is
intended as a summary only and is qualified in its entirety by reference to the
Charter and the By-laws of the Company.
15
NUMBER OF DIRECTORS, REMOVAL OF DIRECTORS AND FILLING VACANCIES ON THE BOARD OF
DIRECTORS
The Company's By-laws provide that the number of directors shall be fixed
by the Board of Directors. The Board of Directors, and not the stockholders, has
the authority to determine the number of directors and could prevent any
stockholder from obtaining majority representation by enlarging the Board of
Directors and filling the new directorships with its own nominees. Moreover, the
Charter provides for removal of directors by the stockholders only for cause and
that the affirmative vote of the holders of at least 75% of the voting power of
the outstanding securities entitled to vote generally for the election of
directors (the "Voting Shares") would be required to remove a director from
office. The Charter and the By-laws provide that a vacancy on the Board of
Directors occurring during the course of the year, including a vacancy created
by an increase in the authorized number of directors, may be filled by the
remaining directors. Subject to applicable law and the rights of holders of any
series of preferred stock, the Charter and the By-laws do not provide for the
filling of vacancies by the stockholders.
CLASSIFIED BOARD OF DIRECTORS
The Board of Directors of the Company is divided into three classes of
directors serving staggered terms. One class of directors is elected at each
annual meeting of stockholders for a three-year term.
ANNUAL AND SPECIAL MEETINGS
Under the Charter and By-laws, subject to the rights of holders of any
series of preferred stock, stockholders are not permitted to call an annual or
special meeting of stockholders. Only the Board of Directors, the Chairman, the
President or Chief Executive Officer will be able to call an annual or special
meeting. Generally, stockholder action may be taken only at an annual or special
meeting of stockholders and may not be taken by written consent. Moreover, the
business to be conducted at any special meeting of stockholders is limited to
business brought before the meeting by the Board of Directors unless a
stockholder complies with the requirements for advance notification.
RESTRICTIONS ON CERTAIN BUSINESS COMBINATIONS
The Charter and Delaware Law impose various conditions on the consummation
of certain transactions between the Company or its stockholders and a
stockholder who acquires beneficial ownership of a specified number of shares.
The Charter imposes conditions on transactions involving "Interested
Stockholders." Interested Stockholders include, generally, holders of more than
10% of the Company's outstanding voting stock who acquired more than 5% of the
Company's outstanding voting stock within the two previous years. Excepted from
the definition, however, are stockholders who owned more than 600,000 shares of
voting stock on any day on which the Company was a majority owned subsidiary of
HOC, stockholders who owned more than 5% of the outstanding voting stock on the
first day on which the Company was not a majority owned subsidiary of HOC, and
any stockholder who purchased 5% or more of the outstanding voting stock with
the approval of the Board of Directors within 15 days of such date. Because the
affirmative vote of at least 75% of the total votes entitled to be cast would be
required to approve business combinations (mergers, consolidations and certain
other transactions) involving Interested Stockholders, holders of a minority of
the number of shares of Common Stock may prevent the consummation of a
transaction favored by holders of a majority of the number of shares of Common
Stock. In addition, the failure of a sufficient number of stockholders to vote
could also result in the defeat of a proposed transaction.
VOTE REQUIRED TO AMEND OR REPEAL CERTAIN PROVISIONS OF THE CERTIFICATE OF
INCORPORATION AND THE BY-LAWS
Unless declared advisable by the affirmative vote of two-thirds of the
total number of directors which the Company would have if there were no
vacancies on the Board of Directors and, if there is an Interested Stockholder,
a majority of the Continuing Directors, the affirmative vote of the holders of
(i) at least 75% of the then outstanding Voting Shares and (ii) if there is an
Interested Stockholder, at least a majority of the voting power of the then
outstanding Voting Shares not beneficially owned by such person, will be
required
16
to amend, repeal or adopt any provision inconsistent with the provisions of the
Charter or By-Laws discussed above. Continuing Directors include, generally,
members of the Board of Directors who are not affiliated with or were not
nominated by an Interested Stockholder and who were members of the Board of
Directors prior to the time such person became an Interested Stockholder.
REQUIREMENT FOR ADVANCE NOTIFICATION OF STOCKHOLDER NOMINATIONS OR PROPOSALS
The Charter and By-Laws provide that advance notice of stockholder
nominations for the election of directors must be received by the Secretary of
the Company. A notice regarding any nomination must contain certain information
including information concerning the nominating stockholder and any information
required to be included in a proxy statement had the nominee been nominated by
the Board of Directors. In addition, each stockholder giving such notice must
provide all other information reasonably requested by the Company.
EVALUATION OF CERTAIN TRANSACTIONS
The Charter provides that a director, when evaluating any tender or
exchange offer or business combination, may, in addition to considering the
effects of any action on the Company's stockholders, consider any other factors
the director considers pertinent, including: applicable law; the amount and type
of consideration; alternative transactions; the business and financial condition
of the acquiring person; the competence and integrity of the acquiring person;
and the social, legal and economic effects, of the proposed transaction on
employees, suppliers and customers of the Company and on the communities in
which the Company conducts its business.
STOCKHOLDER RIGHTS PLAN
On November 11, 1994, the Company adopted a stockholder rights plan and
declared a dividend of one right (a "Right") for each share of Common Stock
outstanding as of the close of business on November 22, 1994. The Rights, which
under certain circumstances entitle their holders to purchase one one-hundredth
of a share of Series C Junior Participating Preferred Stock, par value $1.00 per
share, for an exercise price of $200, will expire on November 11, 2004.
The Rights are not exercisable until the earlier to occur of (i) 10 days
following the first date of public announcement that a person or group of
affiliated persons (an "Acquiring Person") has acquired beneficial ownership
of 15% or more of the outstanding shares of Common Stock or such earlier date as
a majority of the Board of Directors shall become aware of the existence of an
Acquiring Person (the "Stock Acquisition Date") or (ii) 10 business days (or
such later date as may be determined by action of the Board of Directors prior
to such time as any person or group of affiliated persons becomes an Acquiring
Person) following the commencement of, or announcement of an intention to make,
a tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of the outstanding
shares of Common Stock.
In the event that any person becomes an Acquiring Person, each holder of a
Right, other than Rights beneficially owned by the Acquiring Person (which will
thereupon become void), will thereafter have the right to receive upon exercise
of a Right at the then current exercise price of the Right, that number of
shares of Common Stock having a market value of two times the exercise price of
the Right. In the event that, after a person or group has become an Acquiring
Person, the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold,
each holder of a Right other than Rights beneficially owned by an Acquiring
Person (which will have become void) will thereafter have the right to receive,
upon the exercise of the Right at the then current exercise price of the Right,
that number of shares of common stock of the person with whom the Company has
engaged in the foregoing transaction which number of shares at the time of such
transaction will have a market value of two times the exercise price of the
Right.
At any time until 10 days following the Stock Acquisition Date (subject to
extension by the Board of Directors), the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right.
17
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the United States:
(i) through underwriters or dealers; (ii) directly to a limited number of
purchasers or to a single purchaser; or (iii) through agents. The Prospectus
Supplement with respect to the Offered Securities will set forth the terms of
the offering of the Offered Securities, including the name or names of any
underwriters or agents, the purchase price of the Offered Securities and the
proceeds to the Company from such sale, any delayed delivery arrangements, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of Securities to be named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters to
purchase the Offered Securities will be subject to conditions precedent and the
underwriters will be obligated to purchase all the Offered Securities if any are
purchased.
If dealers are utilized in the sale of Offered Securities in respect of
which this Prospectus is delivered, the Company will sell such Offered
Securities to dealers as principals. The dealers may then resell such Offered
Securities to the public at varying prices to be determined by such dealers at
the time of resale. The names of the dealers and the terms of the transaction
will be set forth in the Prospectus Supplement relating thereto.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered Securities in respect to which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement arising thereto. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
The Securities may be sold directly by the Company to institutional
investors or others, who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any sale thereof. The terms of any such sales
will be described in the Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, dealers or underwriters may be
required to make in respect thereof. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
The Securities may or may not be listed on a national securities exchange.
No assurances can be given that there will be a market for the Securities.
18
LEGAL MATTERS
Certain legal matters in connection with the Securities offered hereby will
be passed upon for the Company by Baker & Botts, L.L.P., Houston, Texas and for
any underwriters or agents by Andrews & Kurth L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements and related financial statement
schedule of the Company contained in its Annual Report on Form 10-K incorporated
by reference in this Prospectus have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of Transok, Inc. as of December 31,
1995 and 1994, and for each of the three years in the period ended December 31,
1995, incorporated by reference in this Prospectus have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are included herein in reliance upon the authority of said
firm as experts in giving said reports.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses payable by the
Company in connection with the offering described in this Registration
Statement.
Registration fee........................ $ 137,931
Printing expenses....................... *
Accounting fees and expenses............ *
Legal fees and expenses................. *
Blue Sky fees and expenses.............. *
Trustee fees and expenses............... *
Rating agency fees...................... *
Miscellaneous........................... *
----------
Total.............................. $ *
==========
- ------------
* To be provided by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Ninth of the Company's Charter provides that to the fullest extent
that the General Corporation Law of the State of Delaware permits the limitation
or elimination of the liability of directors, no director of the Company shall
be personally liable to the Company or its stockholders for damages for breach
of fiduciary duty as a director. Notwithstanding the foregoing, a director shall
be liable to the extent provided by applicable law (1) for any breach of the
director's duty of loyalty to the Company or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) for any willful or negligent declaration of an unlawful
dividend, stock purchase or redemption or (4) for any transaction from which the
director derived any improper personal benefit.
Article Tenth of the Company's Charter provides that the Company shall
indemnify each person who was or is made a party or is threatened to be made a
party to or is involved in any threatened, pending or completed action, suit or
proceeding, by reason of the fact that he or she is or was a director or officer
of the Company, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer, employee or agent or alleged action in any other
capacity while serving as a director, officer, employee or agent, to the maximum
extent authorized by the General Corporation Law of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware
authorizes the indemnification of directors and officers against liability
incurred by reason of being a director or officer and against expenses
(including attorneys' fees) in connection with defending any action seeking to
establish such liability, in the case of third-party claims, if the officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and in the case of actions
by or in the right of the corporation, if the officer or director acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and if such officer or director shall not have been
adjudged liable to the corporation, unless a court otherwise determines.
Indemnification is also authorized with respect to any criminal action or
proceeding where the officer or director had no reasonable cause to believe his
conduct was unlawful.
II-1
ITEM 16. EXHIBITS
EXHIBIT NO.
- ------------------------
+1.1 -- Form of Underwriting Agreement (Equity)
+1.2 -- Form of Underwriting Agreement (Debt)
4 -- Form of Indenture between the Company and Texas
Commerce Bank, N.A., as trustee
+5 -- Opinion of Baker & Botts, L.L.P. as to the validity
of the Offered Securities
12 -- Statement of Computation of ratio of earnings to
fixed charges
23.1 -- Consent of Deloitte & Touche, LLP
23.2 -- Consent of Arthur Andersen LLP
+23.3 -- Consent of Baker & Botts, L.L.P. (included in
Exhibit 5)
24 -- Powers of Attorney
25 -- Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Texas Commerce
Bank, N.A., as trustee, is bound separately
on Form T-1
------------
* Incorporated by reference as indicated.
+ To be filed by amendment.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act if, in
the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement;
(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 (a)(1)(i) and (a)(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 by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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
II-2
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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, 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.
II-3
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE COMPANY
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 HOUSTON, THE STATE OF TEXAS, ON JUNE 17, 1996.
TEJAS GAS CORPORATION
By: /s/ JAY A. PRECOURT
JAY A. PRECOURT,
VICE CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON JUNE 17, 1996.
SIGNATURE TITLE
--------- -----
* Chairman of the Board of Directors
FREDERIC C. HAMILTON
/s/JAY A. PRECOURT Vice Chairman and Chief Executive
Officer
JAY A. PRECOURT
(PRINCIPAL EXECUTIVE OFFICER)
/s/CHARLES R. CRISP President and Director
CHARLES R. CRISP
/s/JAMES W. WHALEN Executive Vice President,
JAMES W. WHALEN Chief Financial Officer
(PRINCIPAL FINANCIAL AND ACCOUNTING and Treasurer
OFFICER)
* Director
CHARLES C. GATES
* Director
ARTHUR L. KELLY
* Director
A. J. MILLER
* Director
ROBERT G. STONE, JR.
* Director
RONALD F. WALKER
*By: /s/ JAMES W. WHALEN
JAMES W. WHALEN
ATTORNEY IN FACT
II-4
TEJAS GAS CORPORATION
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
TRUSTEE
-----------------------------------------------------
INDENTURE
DATED AS OF
_________________, 1996
DEBT SECURITIES
-1-
TEJAS GAS CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _______________, 1996
------------------------------------
Section of
Trust Indenture Section(s) of
Act Of 1939 Indenture
ss. 310 (a)(1)..................................... 609
(a)(2)..................................... 609
(a)(3)..................................... Not Applicable
(a)(4)..................................... Not Applicable
(b)........................................ 608, 610
ss. 311 (a)........................................ 613
(b)........................................ 613
(c)........................................ Not Applicable
ss. 312 (a)........................................ 701, 702(a)
(b)........................................ 702(b)
(c)........................................ 702(c)
ss. 313 (a)........................................ 703(a)
(b)........................................ 703(b)
(c)........................................ 703(c)
(d)........................................ 703(d)
ss. 314 (a)........................................ 704, 1006
(b)........................................ Not Applicable
(c)(1)..................................... 103
(c)(2)..................................... 103
(c)(3)..................................... Not Applicable
(d)........................................ Not Applicable
(e)........................................ 103
ss. 315 (a)........................................ 601(a)
(b)........................................ 602
(c)........................................ 601(b)
(d)........................................ 601(c)
(d)(1)..................................... 601(a)(1)
(d)(2)..................................... 601(c)(2)
(d)(3)..................................... 601(c)(3)
(e)........................................ 513
ss. 316 (a)(1)(A).................................. 502, 511
(a)(1)(B).................................. 512
(a)(2)..................................... Not Applicable
(a)(last sentence)......................... 101
(b)........................................ 508
ss. 317 (a)(1)..................................... 503
(a)(2)..................................... 504
(b)........................................ 1003
ss. 318 (a)........................................ 108
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
-2-
TABLE OF CONTENTS
PAGE
PARTIES........................................................................1
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.....................................................1
Act .............................................................2
Additional Amounts....................................................2
Affiliate.............................................................2
Authenticating Agent..................................................2
Authorized Newspaper..................................................2
Board of Directors....................................................2
Board Resolution......................................................2
Book-Entry Security...................................................2
Business Day..........................................................2
Commission............................................................3
Common Depositary.....................................................3
Company .............................................................3
Company Request and Company Order.....................................3
Conversion Event......................................................3
Corporate Trust Office................................................3
Defaulted Interest....................................................3
Depositary............................................................3
Dollar .............................................................3
Event of Default......................................................3
Exchange Date.........................................................3
Exchange Rate.........................................................3
Holder .............................................................3
Indenture.............................................................4
interest .............................................................4
Interest Payment Date.................................................4
Judgment Currency.....................................................4
Maturity .............................................................4
Officers' Certificate.................................................4
Opinion of Counsel....................................................4
Original Issue Discount Security......................................4
Outstanding...........................................................4
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PAGE
Paying Agent..........................................................5
Person .............................................................5
Place of Payment......................................................5
Predecessor Security..................................................5
Redemption Date.......................................................6
Redemption Price......................................................6
Registered Security...................................................6
Regular Record Date...................................................6
Required Currency.....................................................6
Responsible Officer...................................................6
Securities............................................................6
Security Register.....................................................6
Special Record Date...................................................6
Stated Maturity.......................................................6
Subsidiary............................................................6
Trustee .............................................................7
Trust Indenture Act...................................................7
United States.........................................................7
United States Alien...................................................7
U.S. Government Obligations...........................................7
Vice President........................................................7
Wholly Owned Subsidiary...............................................7
Yield to Maturity.....................................................7
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT...............7
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS............................8
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..........................9
SECTION 105. ACTS OF HOLDERS; RECORD DATES...................................9
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY..........................10
SECTION 107. NOTICE TO HOLDERS; WAIVER......................................11
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT..............................11
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.......................11
SECTION 110. SUCCESSORS AND ASSIGNS.........................................11
SECTION 111. SEPARABILITY CLAUSE............................................11
SECTION 112. BENEFITS OF INDENTURE..........................................12
SECTION 113. GOVERNING LAW..................................................12
SECTION 114. LEGAL HOLIDAYS.................................................12
SECTION 115. CORPORATE OBLIGATION...........................................12
-ii-
PAGE
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY................................................13
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTIFICATION..............13
SECTION 203. SECURITIES IN GLOBAL FORM......................................13
SECTION 204. BOOK-ENTRY SECURITIES..........................................14
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES...........................16
SECTION 302. DENOMINATIONS..................................................19
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.................19
SECTION 304. TEMPORARY SECURITIES...........................................20
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE............21
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...............23
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.................23
SECTION 308. PERSONS DEEMED OWNERS..........................................25
SECTION 309. CANCELLATION...................................................25
SECTION 310. COMPUTATION OF INTEREST........................................25
SECTION 311. CUSIP NUMBERS..................................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE........................26
SECTION 402. APPLICATION OF TRUST MONEY.....................................28
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES.............28
SECTION 404. REINSTATEMENT..................................................29
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT..............................................29
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.............31
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE..................................................32
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM...............................33
-iii-
PAGE
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.......................................34
SECTION 506. APPLICATION OF MONEY COLLECTED.................................34
SECTION 507. LIMITATION ON SUITS............................................35
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST...........................................35
SECTION 509. RIGHTS AND REMEDIES CUMULATIVE.................................35
SECTION 510. DELAY OR OMISSION NOT WAIVER...................................36
SECTION 511. CONTROL BY HOLDERS.............................................36
SECTION 512. WAIVER OF PAST DEFAULTS........................................36
SECTION 513. UNDERTAKING FOR COSTS..........................................37
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES............................37
SECTION 602. NOTICE OF DEFAULTS.............................................38
SECTION 603. CERTAIN RIGHTS OF TRUSTEE......................................39
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.........40
SECTION 605. MAY HOLD SECURITIES............................................40
SECTION 606. MONEY HELD IN TRUST............................................40
SECTION 607. COMPENSATION AND REIMBURSEMENT.................................40
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS........................41
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY........................41
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..............42
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.........................43
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS....44
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..............44
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT............................44
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS......46
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.........47
SECTION 703. REPORTS BY TRUSTEE.............................................47
SECTION 704. REPORTS BY COMPANY.............................................48
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PAGE
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS...........48
SECTION 802. SUCCESSOR PERSON SUBSTITUTED...................................48
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.............49
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS................50
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES...........................51
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES..............................51
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT............................51
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.............51
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST....................52
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY...............................52
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.............52
SECTION 1004. EXISTENCE.....................................................54
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT...........................54
SECTION 1006. WAIVER OF CERTAIN COVENANTS...................................54
SECTION 1007. ADDITIONAL AMOUNTS............................................54
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE......................................55
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.........................55
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.............56
SECTION 1104. NOTICE OF REDEMPTION..........................................56
SECTION 1105. DEPOSIT OF REDEMPTION PRICE...................................57
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.........................57
SECTION 1107. SECURITIES REDEEMED IN PART...................................57
SECTION 1108. PURCHASE OF SECURITIES........................................58
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PAGE
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE......................................58
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.........58
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.....................59
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.....................59
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.............................59
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS...........................60
SECTION 1304. QUORUM; ACTION.................................................60
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.................................................61
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS................61
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INDENTURE, dated as of _______________, 1996 between TEJAS GAS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
1301 McKinney Street, Suite 700, Houston, Texas 77010, and TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association, as Trustee (herein called
the "Trustee"), the office of the Trustee at which at the date hereof its
corporate trust business is principally administered being 712 Main Street,
Houston, Texas 77002.
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"), to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder that are required to be part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation; and
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(3) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are
required by the express terms of a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant thereto, to be
paid by the Company with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to such
Holders.
"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.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"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" has the meaning specified in Section
204.
"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.
-2-
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, 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.
"Common Depositary" has the meaning specified in Section 304.
"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.
"Company Request" and "Company Order" mean, respectively, 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 Controller, an Assistant Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the
Trustee in Dallas, Texas at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
that indicated in the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of a global Security, the Person
designated as 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 Depositary hereunder, and if at any time there is more
than one such person, "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of that series.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means the
Person in whose name the Security is registered in the Security Register.
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"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 shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"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.
"Judgment Currency" has the meaning specified in Section 506.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
the Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) 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
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; PROVIDED
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
-4-
(iii) 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;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (b) the principal amount of a Security
denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) 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 or upon any such
determination as to the presence of a quorum, 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 include the
Company, authorized by the Company to pay the principal of (and premium, if any)
or interest on any one or more series of Securities 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 the Securities of that series are payable as specified in
accordance with Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
-5-
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form
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 Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301, or, if not so specified, the
last day of the calendar month preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of the calendar month or the
fifteenth day of the calendar month preceding such Interest Payment Date if such
Interest Payment Date is the first day of a calendar month, whether or not such
day shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee,
means the Chairman or any Vice Chairman of the Board of Directors, the Chairman
or any Vice Chairman of the Executive Committee of the Board of Directors, the
Chairman of the Trust Committee, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller or any Assistant Controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any series 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, 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 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. For the purposes of this definition, "voting stock"
-6-
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"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" 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
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including
the States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" has the meaning specified in
Section 401.
"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".
"Wholly Owned Subsidiary" means a corporation all the
outstanding voting stock (other than any directors' qualifying shares) of which
is owned, directly or indirectly, by the Company or by one or more other Wholly
Owned Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the
United States Code.
"indenture securities" means the Securities.
-7-
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, 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
(including any covenants the compliance with which constitutes a condition
precedent), 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 (including any covenants the
compliance with which constitutes a condition precedent), have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
-8-
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 105. ACTS OF HOLDERS; RECORD DATES.
(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. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding of any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and 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 1306.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Registered Securities entitled to vote or
consent to any action by vote or consent authorized or permitted under this
Indenture, which record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation. If a record date is fixed,
those persons who were Holders of Outstanding Registered Securities at such
record date (or their duly designated proxies), and only
-9-
those persons, shall be entitled with respect to such Securities to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such persons continue to be Holders after such record date.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice thereof to be given to the Trustee in
writing in the manner provided in Section 106 and to the relevant Holders as set
forth in Section 107.
(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 principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security. Any Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to his Security or
portion of his Security; PROVIDED, HOWEVER, that such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the Act becomes effective.
SECTION 106. 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,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company, Attention: Corporate Secretary.
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SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.
In 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 to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case in which notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder of a Registered
Security, shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities.
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 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. 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 110. 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 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Authenticating Agent, Paying Agent and Security
Registrar, and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent the
application of the laws of another jurisdiction would be required thereby.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal and interest (and premium and Additional
Amounts, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, PROVIDED that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
SECTION 115. CORPORATE OBLIGATION.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be Registered Securities
and shall be in substan tially such form or forms (including temporary or
permanent global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If temporary
Securities of any series are issued in global form as permitted by Section 304,
the form thereof shall be established as provided in the preceding sentence. A
copy of the Board Resolution establishing the form or forms of Securities of any
series (or any such temporary global Security) 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 Company Order contemplated by Section 303 for
the authentication and delivery of such Securities (or any such temporary global
Security).
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTIFICATION.
The Trustee's certificate of authentification shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[------------------------------],
AS TRUSTEE
By_______________________________
AUTHORIZED SIGNATORY".
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time
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to time endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified in such Security or in a Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. 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 in such Security or
in the applicable Company Order. If a Company Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 103 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or of the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a global Security as
shall be specified in a written statement, if any, of the Holder of such global
Security, which is produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or
permanent form. Permanent global Securities will be issued in definitive form.
SECTION 204. BOOK-ENTRY SECURITIES.
Notwithstanding any provision of this Indenture to the
contrary:
(a) At the discretion of the Company, any Registered Security may be
issued from time to time, in whole or in part, in permanent global form
registered in the name of a Depositary, or its nominee. Each such Registered
Security in permanent global form is hereafter referred to as a "Book-Entry
Security". Upon such election, the Company shall execute, and the Trustee or an
Authenticating Agent shall authenticate and deliver, one or more Book-Entry
Securities that (i) are denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series if elected in
whole or such lesser amount if elected in part, (ii) are registered in the name
of the Depositary or its nominee, (iii) are delivered by the Trustee or an
Authenticating Agent to the
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Depositary or pursuant to the Depositary's instructions and (iv) bear a legend
in substantially the following form (or such other form as the Depositary and
the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY], TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [NOMINEE
OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY PAYMENT
IS MADE TO [NOMINEE OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE
DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, [NOMINEE OF THE DEPOSITARY], HAS
AN INTEREST HEREIN.
(b) Any Book-Entry Security shall be initially executed and delivered
as provided in Section 303. Notwithstanding any other provision of this
Indenture, unless and until it is exchanged in whole or in part for Registered
Securities not issued in global form, a Book-Entry Security may not be
transferred except as a whole by the Depositary to a nominee of such Depositary,
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
or a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company or the Trustee
that it is unwilling or unable to continue as Depositary for any Book-Entry
Securities, the Company shall appoint a successor Depositary, whereupon the
retiring Depositary shall surrender or cause the surrender of its Book-Entry
Security or Securities to the Trustee. The Trustee shall promptly notify the
Company upon receipt of such notice. If a successor Depositary has not been so
appointed by the effective date of the resignation of the Depositary, the
Book-Entry Securities will be issued as Registered Securities not issued in
global form, in an aggregate principal amount equal to the principal amount of
the Book-Entry Security or Securities theretofore held by the Depositary.
The Company may at any time and in its sole discretion
determine that the Securities shall no longer be Book-Entry Securities
represented by a global certificate or certificates, and will so notify the
Depositary. Upon receipt of such notice, the Depositary shall promptly surrender
or cause the surrender of its Book-Entry Security or Securities to the Trustee.
Concurrently therewith, Registered Securities not issued in global form will be
issued in an aggregate principal amount equal to the principal amount of the
Book-Entry Security or Securities theretofore held by the Depositary.
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Upon any exchange of Book-Entry Securities for Registered
Securities not issued in global form as set forth in this Section 204(c), such
Book-Entry Securities shall be cancelled by the Trustee, and Securities issued
in exchange for such Book-Entry Securities pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Book-Entry Securities, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee or
any Authenticating Agent shall deliver such Securities to the persons in whose
names such Securities are so registered.
(d) The Company and the Trustee shall be entitled to treat the Person
in whose name any Book-Entry Security is registered as the Holder thereof for
all purposes of the Indenture and any applicable laws, notwithstanding any
notice to the contrary received by the Trustee or the Company; and the Trustee
and the Company shall have no responsibility for transmitting payments to,
communication with, notifying, or otherwise dealing with any beneficial owners
of any Book-Entry Security. Neither the Company nor the Trustee shall have any
responsibility or obligations, legal or otherwise, to the beneficial owners or
to any other party including the Depositary, except for the Holder of any
Book-Entry Security, PROVIDED HOWEVER, notwithstanding anything herein to the
contrary, (i) for the purposes of determining whether the requisite principal
amount of Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver, instruction or other action
hereunder as of any date, the Trustee shall treat any Person specified in a
written statement of the Depositary with respect to any Book-Entry Securities as
the Holder of the principal amount of such Securities set forth therein and (ii)
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or Trustee, from giving effect to any written certification, proxy or
other authorization furnished by a Depositary with respect to any Book-Entry
Securities, or impair, as between a Depositary and holders of beneficial
interests in such Securities, the operation of customary practices governing the
exercise of the rights of the Depositary as Holder of such Securities.
(e) So long as any Book-Entry Security is registered in the name of a
Depositary or its nominee, all payments of the principal of (and premium, if
any) and interest on such Book-Entry Security and redemption thereof and all
notices with respect to such Book Entry Security shall be made and given,
respectively, in the manner provided in the arrangements of the Company with
such Depositary.
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,
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(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 the series pursuant to Section 304, 305, 306, 906 or
1107);
(3) whether Securities of the series are to be issuable as
Registered Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities
of the series are to be issuable in permanent global form, as Book-
Entry Securities or otherwise, and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 305, and the Depositary for any global Security or Securities;
(4) the manner in which any interest payable on a temporary
global Security on any Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(5) the date or dates on which the principal of (and premium,
if any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and, if other than as set forth in Section
101, the Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any), any interest on
and any Additional Amounts with respect to the Securities of the series
shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at which and the
terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company
must exercise any such option;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which, Securities of the series shall be redeemed
or purchased in whole or in part pursuant to such obligation;
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(10) the denomination in which any Registered Securities of
that series shall be issuable, if other than denominations of $1,000
and any integral multiple thereof;
(11) the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any),
any interest on and any Additional Amounts with respect to the
Securities of the series shall be payable if other than the currency of
the United States of America;
(12) if the principal of (and premium, if any) or interest on
the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are
stated to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect to, Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(13) if the amount of payments of principal of (and premium,
if any), any interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, or values, rates or prices, the
manner in which such amounts shall be determined;
(14) if other than the entire 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;
(15) any additional means of satisfaction and discharge of
this Indenture with respect to Securities of the series pursuant to
Section 401, any additional conditions to discharge pursuant to Section
401 or 403 and the application, if any, of Section 403;
(16) any deletions or 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;
and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 303) set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
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At the option of the Company, interest on the Registered
Securities of any series that bears interest may be paid by mailing a check to
the address of any Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action together with such Board Resolution 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. DENOMINATIONS.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Chairman of the Board, President,
Treasurer or any Vice President of the Company.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
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Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect
of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization or
other laws relating to or affecting creditors' rights and (ii) general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security, a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other
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variations as the officers of the Company executing such Securities may
determine, as evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
All Outstanding temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to Section 1002
a register (the register maintained in such office and in any other office or
agency of the Company 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 of such
series. The Trustee is hereby initially appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency 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 and of like tenor, of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series and
of like tenor, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
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.
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Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than the earliest date
on which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of that series in an aggregate principal amount
equal to the principal amount of such permanent global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered from time to time
in accordance with instructions given to the Trustee and the Common Depositary
(which instructions shall be in writing but need not comply with Section 103 or
be accompanied by an Opinion of Counsel) by the Common Depositary or such other
depositary or Common Depositary as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, a like aggregate principal
amount of other definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global Security
to be exchanged; PROVIDED, HOWEVER, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of that series is to be redeemed and ending on the relevant
Redemption Date. Promptly following any such exchange in part, such permanent
global Security marked to evidence the partial exchange shall be returned by the
Trustee to the Common Depositary or such other depositary or Common Depositary
referred to above in accordance with the instructions of the Company referred to
above. If a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs 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 proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed for payment, as the case may be, only to the Person to
whom interest in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other
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governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchange pursuant to Section 304,
906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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
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 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.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
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Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise provided with respect to the Securities of
any series, payment of interest may be made at the option of the Company by
check mailed or delivered to the address of any Person entitled thereto as such
address shall appear in the Security Register.
Any interest on 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 in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of 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, 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 Registered 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 (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered 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
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the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture, upon registration of transfer of, in
exchange for or in lieu of, any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
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 Sections 305 and
307) interest on such Registered Security and for all other purposes whatsoever,
whether or not such 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.
SECTION 309. CANCELLATION.
All Securities 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. All Registered Securities so delivered shall be promptly
cancelled by the Trustee. 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
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; PROVIDED that the Trustee shall not be required to destroy such
Securities.
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 year of twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the
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Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of a series, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to Securities of such
series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, and (ii)
Securities 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) with respect to all Outstanding Securities of
such series not theretofore delivered to the Trustee for
cancellation, the Company has deposited or caused to be
deposited with the Trustee as trust funds, under the terms of
an irrevocable trust agreement in form and substance
satisfactory to the Trustee, for the purpose money or U.S.
Government Obligations maturing as to principal and interest
in such amounts and at such times as will, together with the
income to accrue thereon, without consideration of any
reinvestment thereof, be sufficient to pay and discharge the
entire indebtedness on all Outstanding Securities of such
series not theretofore delivered to the Trustee for
cancellation for principal (and premium and Additional
Amounts, if any) and interest to the Stated Maturity or any
Redemption Date contemplated by the penultimate paragraph of
this Section, as the case may be; or
(C) 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 of such series;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series;
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(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 401;
(4) 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 with respect to the Outstanding Securities
of such series have been complied with;
(5) if the conditions set forth in Section 401(1)(A) have not
been satisfied, and unless otherwise specified pursuant to Section 301
for the Securities of such series, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of
Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject to United States federal
income tax on the same amount and in the same manner and at the same
time as would have been the case if such deposit, satisfaction and
discharge had not occurred; and
(6) no Default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the
date of such deposit or, in so far as clauses (5) or (6) of Section 501
is concerned, at any time in the period ending on the 91st day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
For the purposes of this Indenture, "U.S. Government
Obligations" means direct non-callable obligations of, or non-callable
obligations the payment of principal of and interest on which is guaranteed by,
the United States of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States of America is pledged,
or beneficial interests in a trust the corpus of which consists exclusively of
money or such obligations or a combination thereof.
If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the trust agreement referred to in subclause (B) of clause (1) of
this Section shall provide therefor and the Company shall 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.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series pursuant to
this Section 401, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, except for a discharge pursuant to subclause (A) of clause (1) of this
Section, the obligations of the Company under Sections 305, 306, 404, 610(e),
701, 1001 and 1002 and the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
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SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Amounts for the payment of which such money has
been deposited with the Trustee.
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES.
If this Section is specified, as contemplated by Section 301,
to be applicable to Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this Indenture
and the Securities of such series to pay the principal of (and premium, if any)
and interest on Securities of such series, shall cease, terminate and be
completely discharged and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging such satisfaction and discharge, when
(1) the Company has complied with the provisions of Section
401 of this Indenture (other than any additional conditions specified
pursuant to Sections 301 and 401(3) and except that the opinion
referred to in Section 401(5) shall state that it is based on a ruling
by the Internal Revenue Service or other change since the date hereof
under applicable Federal income tax law) with respect to all
Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 403, and
(4) 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 discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this
Section with respect to all the Outstanding Securities of any series, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; PROVIDED that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
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SECTION 404. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations deposited with respect to Securities of any series
in accordance with Section 401 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 401; PROVIDED, HOWEVER, that if the Company has made any
payment of principal of (or premium, if any), or interest on and any Additional
Amounts with respect to any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
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), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
(1) default in the payment of any interest or any Additional
Amounts upon any Security of that series when such interest or
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 (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 one or more 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
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Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of all Outstanding Securities 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) 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
(6) 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
(7) any other Event of Default provided with respect to
Securities of that series.
Notwithstanding the foregoing provisions of this Section 501,
if the principal of (and premium, if any) or any interest on, or Additional
Amounts with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment thereof
due to the imposition of exchange controls or other circumstances beyond the
control of the Company (a "Conversion Event"), the Company will be entitled to
satisfy its obligations to Holders of the Securities by making such payment in
Dollars in an amount equal to the Dollar equivalent of the amount payable in
such other currency, as determined by the Company by reference to the noon
buying rate in The City of New York for cable transfers for such currency
("Exchange Rate"), as such Exchange Rate is certified for customs purposes by
the Federal Reserve Bank of New York on the date of such payment, or, if such
rate is not then available, on the basis of the most recently available Exchange
Rate. Notwithstanding the foregoing provisions of this Section 501, any
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payment made under such circumstances in Dollars where the required payment is
in a currency other than Dollars will not constitute an Event of Default under
this Indenture.
Promptly after the occurrence of a Conversion Event, the
Company shall give written notice thereof to the Trustee; and the Trustee,
promptly after receipt of such notice, shall give notice thereof in the manner
provided in Section 106 to the Holders. Promptly after the making of any payment
in Dollars as a result of a Conversion Event, the Company shall give notice in
the manner provided in Section 106 to the Holders, setting forth the applicable
Exchange Rate and describing the calculation of such payments.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to any Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following sentence,
in the case of other Events of Default) may declare the principal amount (or, if
any such Securities 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
Securities of the series affected by such default or all series, as the case may
be, 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.
If an Event of Default described in clause (5) or (6) of Section 501 shall
occur, the principal amount of the Outstanding Securities of all series IPSO
FACTO shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series (or of all series, as the case may be) 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 (or
of all series, as the case may be), 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 interest on, and any Additional
Amounts with respect to, all Securities of that series (or of
all series, as the case may be),
(B) the principal of (and premium, if any, on) any
Securities of that series (or of all series, as the case may
be) which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity),
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(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and any Additional
Amounts at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity), 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 (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be) which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 512.
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 of
any series when such interest or Additional Amounts shall have 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 it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest and Additional Amounts, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect
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the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series 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 of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser amount
in the case of Original Issue Discount Securities) of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal (premium, if any), interest or Additional
Amounts) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any 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 to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceedings; PROVIDED,
HOWEVER,
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that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS.
All rights of action and claim under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any), interest or any Additional Amounts, upon presentation of
the Securities, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest and any Additional
Amounts on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any), interest and Additional
Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any windfall
in payments to Holders of Securities under this Section caused by a change in
exchange rates between the time the amount of a judgment against it is
calculated as above and the time the Trustee converts the Judgment Currency into
the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by the
Company on the claim or claims underlying such judgment.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing Event
of Default;
(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 to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on and any Additional Amounts with respect to
such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 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
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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 510. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 511. CONTROL BY HOLDERS.
With respect to Securities of any series, the Holders of a
majority in principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under an Event of Default
described in clause (1), (2), (3) or (7) of Section 501, and with respect to all
Securities the Holders of a majority in principal amount of all Outstanding
Securities shall have the right to direct the time, method and place of
conducting any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, not relating to or arising under such an Event of
Default, PROVIDED that in each such case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 512. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of all Securities
waive any other past default hereunder and its consequences, except in each case
a default
(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security,
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
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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 513. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with respect to, any Security
on or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing
with respect to the Securities of any series, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, EXCEPT that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
or of all series, determined as provided in Section 511,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall give notice of
such default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 106, unless such default shall have
been cured or waived; PROVIDED, HOWEVER, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest on, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. 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 with respect to Securities of such series.
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SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(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, coupon, 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
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 security or indemnity
satisfactory to it 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, coupon, 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; and
(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, except for any Affiliates of the
Trustee, 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.
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SECTION 604. 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 the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, 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 606. 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 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time 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);
(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
compensation and the reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and each of its directors,
officers, employees, agents and/or representatives for, and to hold
each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on each of 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 the Trustee's 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 upon all property and funds held or collected by
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the Trustee as such, except funds held in trust for the payment of principal of,
premium, if any, or interest, if any, on, or any Additional Amounts with respect
to, particular Securities.
Any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in clause (5) or
(6) of Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to the Securities of
that series in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture Act
and the Trustee shall comply with Section 310(b) of the Trust Indenture Act;
PROVIDED, that there shall be excluded from the operation of Section 310(b)(1)
of the Trust Indenture Act with respect to the Securities of any series any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding,
if the requirements for such exclusion set forth in Section 310(b)(1) of the
Trust Indenture Act are met. For purposes of the preceding sentence, the
optional provision permitted by the second sentence of Section 310(b)(9) of the
Trust Indenture Act shall be applicable.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. 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.
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SECTION 610. 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 in accordance with the
applicable requirements of Section 611.
(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 611 shall
not have been delivered to the resigning 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:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 513, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee 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 such successor Trustee
or Trustees shall comply with the applicable requirements of Section 611. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the
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Company and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. 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 611. 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 of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and 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 supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
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successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or 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 obligatory 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 certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia having a
combined
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capital and surplus of not less than $50,000,000 or equivalent amount expressed
in a foreign currency and subject to supervision or examination by Federal or
State authority or authority of such country. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at 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 mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. 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 Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
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"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
--------------------------------------,
AS TRUSTEE
By ____________________________________,
AS AUTHENTICATING AGENT
By ____________________________________
AUTHORIZED SIGNATORY".
Notwithstanding any provision of this Section 614 to the
contrary, if at any time any Authenticating Agent appointed hereunder with
respect to any series of Securities shall not also be acting as the Security
Registrar hereunder with respect to any series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (i) to furnish to the Security Registrar promptly
all information necessary to enable the Security Registrar to maintain at all
times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain from
the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date
relating to that series (or, if there is no Regular Record Date relating to that
series, on January 1 and July 1), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of that series as
of such dates, 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, such list to be dated as of a date not more than 15 days prior
to the time such list is furnished;
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PROVIDED, that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders of each series received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to it
as provided in Section 701 upon receipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant to the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), 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 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the year
1995, the Trustee shall transmit by mail to Holders a brief report dated as of
such May 15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313 (b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two
years preceding such transmissions, filed their names and addresses
with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b)
of this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
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SECTION 704. REPORTS BY COMPANY.
The Company shall 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, as amended, and shall otherwise comply with Section 314(a)
of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person 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, partnership or
trust and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest (including all Additional Amounts, if any) on all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
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 PERSON 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 named as
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the Company herein, and thereafter, except in the case of such lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series), to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee or otherwise secure any
series of the Securities or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
or
(5) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(6) 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
Section 401; PROVIDED, HOWEVER, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change
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any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section 611(b);
or
(8) 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 other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (acting as one 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 indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; PROVIDED,
HOWEVER, that no such 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 Security, or reduce the
principal amount thereof or the rate of interest thereon, any
Additional Amounts with respect thereto or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay
Additional Amounts (except as contemplated by Section 801(1) and
permitted by Section 901(1)), 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 change any Place of Payment where, or the coin or
currency or currencies (including composite currencies) in which, any
Security or any premium or any interest thereon or Additional Amounts
with respect thereto 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
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 512
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
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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 and Section 1007, or
the deletion of this proviso, in accordance with the requirements of
Sections 611 (b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) 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, immunities or liabilities 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 of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to
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conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), 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.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities 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.
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 will, 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 sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for
any series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any), 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), interest on or any
Additional Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
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 any Security of any series and remaining
unclaimed for three years after such principal (and premium, if any) or interest
has become due and payable shall, unless otherwise required by mandatory
provisions of applicable escheat, or abandoned or unclaimed property law, be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in The Borough of Manhattan, The
City of New York and in such other Authorized Newspapers as the Trustee shall
deem appropriate, notice that such money remains unclaimed and that, after a
date
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specified herein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will, unless
otherwise required by mandatory provisions of applicable escheat, or abandoned
or unclaimed property law, be repaid to the Company.
SECTION 1004. 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.
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof so long
as any Security is outstanding hereunder, an Officers' Certificate, stating that
a review of the activities of the Company during such year and of performance
under this Indenture has been made under the supervision of the signers thereof
and whether or not to the best of their knowledge, based upon such review, the
Company is in default in the performance, observance or fulfillment of any of
its covenants and other obligations under this Indenture, and if the Company
shall be in default, specifying each such default known to them and the nature
and status thereof. One of the officers signing the Officers' Certificate
delivered pursuant to this Section 1005 shall be the principal executive,
financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 1004, or any covenant added for
the benefit of any series of Securities as contemplated by Section 301 (unless
otherwise specified pursuant to Section 301) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant 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 covenant or
condition shall remain in full force and effect.
SECTION 1007. ADDITIONAL AMOUNTS.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly 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 the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be
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deemed to include mention of the payment of Additional Amounts provided for in
this Section to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if applicable)
in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
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 that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium 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 the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
who are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
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 and the Company will pay to such
Paying Agent the Additional Amounts required by this Section. 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 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, a
reasonable period 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 prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
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SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities 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 in the manner provided in
Section 107 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
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(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m., Dallas, Texas time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein 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. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest (and any Additional Amounts) to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest 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 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 or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security 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 of the
same series and Stated Maturity, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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SECTION 1108. PURCHASE OF SECURITIES.
Unless otherwise specified as contemplated by Section 301, the
Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities in the open market or by private agreement. Such acquisition
shall not operate as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery,
the indebtedness represented thereby shall be deemed to be satisfied. Section
309 shall apply to all Securities so delivered.
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". Unless otherwise provided 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), 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 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 payment shall be reduced
accordingly.
-58-
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by 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 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
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any or all 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 1302. 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 1301, to be held
at such time and at such place in Houston, Texas, in The Borough of Manhattan,
The City of New York, in London or in any other location, 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 107, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1301, 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 30 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 Houston, Texas, in The Borough of
Manhattan, The City of New
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York, or 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 1303. 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 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of 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 a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(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 that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in aggregate 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 request, demand,
authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate 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 aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, 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, whether or not present or represented at
the meeting.
-60-
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) The holding of Securities shall be proved in the manner
specified in Section 105 and the appointment of any proxy shall be proved in the
manner specified in Section 105. 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 105 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 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate 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
and each proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding 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 as a proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate 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 1306. 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 signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers 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 duplicate of all votes cast at the meeting. A record, at least in
duplicate, 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 such 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 such notice was given as provided in Section 1302 and, if
applicable, Section 1304. 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.
-61-
* * *
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.
-62-
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.
TEJAS GAS CORPORATION
[CORPORATE SEAL] By
Name:
Title:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Trustee
[CORPORATE SEAL] By
Name:
Title:
-63-
STATE OF _________ ss.
ss. ss.
COUNTY OF ________ ss.
On the ____ day of _____________, _____, before me personally
came _____________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of TEJAS GAS CORPORATION, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
Notary Public
[NOTARIAL SEAL]
STATE OF ___________ ss.
ss. ss:
COUNTY OF __________ ss.
On the ___ day of _______, ____, before me personally came
_________, to me known, who, being by me duly sworn, did depose and say that he
is ______________ of TEXAS COMMERCE BANK NATIONAL ASSOCIATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
Notary Public
[NOTARIAL SEAL]
-64-
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
TEJAS GAS CORPORATION
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities that are held by the undersigned
or held by you for the account of the undersigned (i) are owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States person(s) that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for
their own account or for resale, or (B) acquired Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (A) or (B), each such United States financial institution hereby
certifies, on its own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to further certify
that such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in the
case of debt securities, the Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)) or (y) U.S. person(s) who purchased the Securities in a transaction
which did not require registration under the Act. If this certification is being
delivered in connection with the exercise of warrants pursuant to Section
230.902(m) of Regulation S under the Act, then this is further to certify that,
except as set forth below, the Securities are being exercised by and on behalf
of non-U.S. person(s). As used in this paragraph the term "U.S. person" has the
meaning given to it by Regulation S under the Act.
A-1
As used herein, "United States" means the United States of
America (including the States and District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to
$______________ of such interest in the above Securities in respect of which we
are not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any interest) cannot be made until we do so certify.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
*Dated: __________________, _____
NAME OF PERSON MAKING CERTIFICATION
By:
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By:
As, or as Agent for, the financial institution (if any) through which a
United States Person acquired the Securities to which this Certificate
relates
- --------
*To be dated no earlier than the Certification Date.
A-2
TEJAS GAS CORPORATION EXHIBIT 12
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS EXCEPT RATIO AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
--------------------- ----------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
-------- --------- --------- -------- --------- --------- ---------
COMPUTATION OF EARNINGS
<C> <C> <C> <C> <C> <C> <C> <C>
(1) Pretax income from continuing operations $17,645 $13,009 $51,790 $48,005 $35,980 $17,794 $13,426
(2) Less equity in earnings of unconsolidated
entity (3,666) 74 158 (1,057) (2,043) (1,181) -
(3) Plus distributions from unconsolidated
entity 2,389 385 1,467 2,673 2,520 1,733 -
(4) Less interest capitalized during the period - - - (400) (100) (1,378) -
-------- --------- --------- -------- --------- --------- ---------
(5) Total earnings before addition of fixed
charges $16,368 $13,468 $53,415 $49,221 $36,357 $16,968 $13,426
======== ========= ========= ======== ========= ========= =========
COMPUTATION OF FIXED CHARGES
(6) Interest on long-term debt $4,789 $5,893 $24,594 $22,388 $16,550 $17,877 $21,834
(7) Amortization of deferred debt costs 366 428 1,536 2,282 1,503 657 1,099
-------- --------- --------- -------- --------- --------- ---------
(8) Total interest expense per statement of
earnings 5,155 6,321 26,130 24,670 18,053 18,534 22,933
(9) Interest capitalized - - - 400 100 1,378 -
(10) Interest component of rentals charged to 2,396 2,355 9,793 10,877 3,123 580 406
operating expenses and general &
administrative expenses
-------- --------- --------- -------- --------- --------- ---------
(11) Total fixed charges $7,551 $8,676 $35,923 $35,947 $21,276 $20,492 $23,339
======== ========= ========= ======== ========= ========= =========
COMPUTATION OF EARNINGS AFTER ADDITION TO
FIXED CHARGES
(12) Total earnings before addition of fixed
charges $16,368 $13,468 $53,415 $49,221 $36,357 $16,968 $13,426
(13) Total fixed charges 7,551 8,676 35,923 35,947 21,276 20,492 23,339
-------- --------- --------- -------- --------- --------- ---------
(14) Total earnings after addition of fixed
charges $23,919 $22,144 $89,338 $85,168 $57,633 $37,460 $36,765
======== ========= ========= ======== ========= ========= =========
(15) Ratio of earnings to fixed charges (14/13) 3.17 2.55 2.49 2.37 2.71 1.83 1.58
======== ========= ========= ======== ========= ========= =========
</TABLE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement
of Tejas Gas Corporation on Form S-3 of our report dated February 14, 1996,
appearing in the Annual Report on Form 10-K of Tejas Gas Corporation for the
year ended December 31, 1995 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
June 17, 1996
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report, dated
February 9, 1996, on the financial statements of Transok, Inc. as of
December 31, 1995 and 1994, and for each of the three years in the period ended
December 31, 1995, included in Tejas Gas Corporation's Form 8-K and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
June 18, 1996
TEJAS GAS CORPORATION
POWER OF ATTORNEY
WHEREAS, TEJAS GAS CORPORATION, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including
post-effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, in each case as may be necessary or appropriate, together with any
and all exhibits and other documents relating to the Registration Statement in
connection with the registration of securities of the Company, including debt
securities of the Company and shares of common stock, par value $.25 per share,
of the Company and the preferred stock purchase rights associated with such
common stock;
NOW, THEREFORE, the undersigned in his capacity as a director
or officer or both, as the case may be, of the Company, does hereby appoint Jay
A. Precourt and James W. Whalen, and each of them severally, his true and lawful
attorney or attorneys with power to act with or without the other, and with full
power of substitution and resubstitution, to execute in his name, place and
stead, in his capacity as director, officer or both, as the case may be, of the
Company, the Registration Statement, including the exhibits thereto and the
Prospectus or Prospectuses referred to above, and any and all amendments thereto
(including post-effective amendments) and any supplement or supplements thereto
and any and all instruments necessary or incidental in connection therewith, as
said attorney or attorneys shall deem necessary or incidental in connection
therewith, and to file the same with the Commission and to appear before the
Commission in connection with any matter relating thereto. Each of said
attorneys shall have full power and authority to do and perform in the name and
on behalf of the undersigned, in any and all capacities, every act whatsoever
necessary or desirable to be done in the premises, as fully and to all intents
and purposes as the undersigned might or could do in person, the undersigned
hereby ratifying and approving the acts that said attorneys and each of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 17 day of June, 1996.
/s/FREDERIC C. HAMILTON
Frederic C. Hamilton
<PAGE>
TEJAS GAS CORPORATION
POWER OF ATTORNEY
WHEREAS, TEJAS GAS CORPORATION, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including
post-effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, in each case as may be necessary or appropriate, together with any
and all exhibits and other documents relating to the Registration Statement in
connection with the registration of securities of the Company, including debt
securities of the Company and shares of common stock, par value $.25 per share,
of the Company and the preferred stock purchase rights associated with such
common stock;
NOW, THEREFORE, the undersigned in his capacity as a director
or officer or both, as the case may be, of the Company, does hereby appoint P.
Anthony Lannie and James W. Whalen, and each of them severally, his true and
lawful attorney or attorneys with power to act with or without the other, and
with full power of substitution and resubstitution, to execute in his name,
place and stead, in his capacity as director, officer or both, as the case may
be, of the Company, the Registration Statement, including the exhibits thereto
and the Prospectus or Prospectuses referred to above, and any and all amendments
thereto (including post-effective amendments) and any supplement or supplements
thereto and any and all instruments necessary or incidental in connection
therewith, as said attorney or attorneys shall deem necessary or incidental in
connection therewith, and to file the same with the Commission and to appear
before the Commission in connection with any matter relating thereto. Each of
said attorneys shall have full power and authority to do and perform in the name
and on behalf of the undersigned, in any and all capacities, every act
whatsoever necessary or desirable to be done in the premises, as fully and to
all intents and purposes as the undersigned might or could do in person, the
undersigned hereby ratifying and approving the acts that said attorneys and each
of them, or their or his substitutes or substitute, may lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 17 day of June, 1996.
/s/JAY A. PRECOURT
Jay A. Precourt
<PAGE>
TEJAS GAS CORPORATION
POWER OF ATTORNEY
WHEREAS, TEJAS GAS CORPORATION, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including
post-effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, in each case as may be necessary or appropriate, together with any
and all exhibits and other documents relating to the Registration Statement in
connection with the registration of securities of the Company, including debt
securities of the Company and shares of common stock, par value $.25 per share,
of the Company and the preferred stock purchase rights associated with such
common stock;
NOW, THEREFORE, the undersigned in his capacity as a director
or officer or both, as the case may be, of the Company, does hereby appoint Jay
A. Precourt and James W. Whalen, and each of them severally, his true and lawful
attorney or attorneys with power to act with or without the other, and with full
power of substitution and resubstitution, to execute in his name, place and
stead, in his capacity as director, officer or both, as the case may be, of the
Company, the Registration Statement, including the exhibits thereto and the
Prospectus or Prospectuses referred to above, and any and all amendments thereto
(including post-effective amendments) and any supplement or supplements thereto
and any and all instruments necessary or incidental in connection therewith, as
said attorney or attorneys shall deem necessary or incidental in connection
therewith, and to file the same with the Commission and to appear before the
Commission in connection with any matter relating thereto. Each of said
attorneys shall have full power and authority to do and perform in the name and
on behalf of the undersigned, in any and all capacities, every act whatsoever
necessary or desirable to be done in the premises, as fully and to all intents
and purposes as the undersigned might or could do in person, the undersigned
hereby ratifying and approving the acts that said attorneys and each of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 17 day of June, 1996.
/s/CHARLES C. GATES
Charles C. Gates
<PAGE>
TEJAS GAS CORPORATION
POWER OF ATTORNEY
WHEREAS, TEJAS GAS CORPORATION, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including
post-effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, in each case as may be necessary or appropriate, together with any
and all exhibits and other documents relating to the Registration Statement in
connection with the registration of securities of the Company, including debt
securities of the Company and shares of common stock, par value $.25 per share,
of the Company and the preferred stock purchase rights associated with such
common stock;
NOW, THEREFORE, the undersigned in his capacity as a director
or officer or both, as the case may be, of the Company, does hereby appoint Jay
A. Precourt and James W. Whalen, and each of them severally, his true and lawful
attorney or attorneys with power to act with or without the other, and with full
power of substitution and resubstitution, to execute in his name, place and
stead, in his capacity as director, officer or both, as the case may be, of the
Company, the Registration Statement, including the exhibits thereto and the
Prospectus or Prospectuses referred to above, and any and all amendments thereto
(including post-effective amendments) and any supplement or supplements thereto
and any and all instruments necessary or incidental in connection therewith, as
said attorney or attorneys shall deem necessary or incidental in connection
therewith, and to file the same with the Commission and to appear before the
Commission in connection with any matter relating thereto. Each of said
attorneys shall have full power and authority to do and perform in the name and
on behalf of the undersigned, in any and all capacities, every act whatsoever
necessary or desirable to be done in the premises, as fully and to all intents
and purposes as the undersigned might or could do in person, the undersigned
hereby ratifying and approving the acts that said attorneys and each of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 17 day of June, 1996.
/s/ARTHUR L. KELLY
Arthur L. Kelly
<PAGE>
TEJAS GAS CORPORATION
POWER OF ATTORNEY
WHEREAS, TEJAS GAS CORPORATION, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including
post-effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, in each case as may be necessary or appropriate, together with any
and all exhibits and other documents relating to the Registration Statement in
connection with the registration of securities of the Company, including debt
securities of the Company and shares of common stock, par value $.25 per share,
of the Company and the preferred stock purchase rights associated with such
common stock;
NOW, THEREFORE, the undersigned in his capacity as a director
or officer or both, as the case may be, of the Company, does hereby appoint Jay
A. Precourt and James W. Whalen, and each of them severally, his true and lawful
attorney or attorneys with power to act with or without the other, and with full
power of substitution and resubstitution, to execute in his name, place and
stead, in his capacity as director, officer or both, as the case may be, of the
Company, the Registration Statement, including the exhibits thereto and the
Prospectus or Prospectuses referred to above, and any and all amendments thereto
(including post-effective amendments) and any supplement or supplements thereto
and any and all instruments necessary or incidental in connection therewith, as
said attorney or attorneys shall deem necessary or incidental in connection
therewith, and to file the same with the Commission and to appear before the
Commission in connection with any matter relating thereto. Each of said
attorneys shall have full power and authority to do and perform in the name and
on behalf of the undersigned, in any and all capacities, every act whatsoever
necessary or desirable to be done in the premises, as fully and to all intents
and purposes as the undersigned might or could do in person, the undersigned
hereby ratifying and approving the acts that said attorneys and each of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 17 day of June, 1996.
/s/A.J. MILLER
A.J. Miller
<PAGE>
TEJAS GAS CORPORATION
POWER OF ATTORNEY
WHEREAS, TEJAS GAS CORPORATION, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including
post-effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, in each case as may be necessary or appropriate, together with any
and all exhibits and other documents relating to the Registration Statement in
connection with the registration of securities of the Company, including debt
securities of the Company and shares of common stock, par value $.25 per share,
of the Company and the preferred stock purchase rights associated with such
common stock;
NOW, THEREFORE, the undersigned in his capacity as a director
or officer or both, as the case may be, of the Company, does hereby appoint Jay
A. Precourt and James W. Whalen, and each of them severally, his true and lawful
attorney or attorneys with power to act with or without the other, and with full
power of substitution and resubstitution, to execute in his name, place and
stead, in his capacity as director, officer or both, as the case may be, of the
Company, the Registration Statement, including the exhibits thereto and the
Prospectus or Prospectuses referred to above, and any and all amendments thereto
(including post-effective amendments) and any supplement or supplements thereto
and any and all instruments necessary or incidental in connection therewith, as
said attorney or attorneys shall deem necessary or incidental in connection
therewith, and to file the same with the Commission and to appear before the
Commission in connection with any matter relating thereto. Each of said
attorneys shall have full power and authority to do and perform in the name and
on behalf of the undersigned, in any and all capacities, every act whatsoever
necessary or desirable to be done in the premises, as fully and to all intents
and purposes as the undersigned might or could do in person, the undersigned
hereby ratifying and approving the acts that said attorneys and each of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 17 day of June, 1996.
/s/ROBERT G. STONE, JR.
Robert G. Stone, Jr.
<PAGE>
TEJAS GAS CORPORATION
POWER OF ATTORNEY
WHEREAS, TEJAS GAS CORPORATION, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a Registration Statement on Form S-3, including a related Prospectus or
Prospectuses, with such amendment or amendments thereto (including
post-effective amendments) and any supplement or supplements thereto (the
"Registration Statement"), as prescribed by the Commission pursuant to the
Securities Act and the rules and regulations of the Commission promulgated
thereunder, in each case as may be necessary or appropriate, together with any
and all exhibits and other documents relating to the Registration Statement in
connection with the registration of securities of the Company, including debt
securities of the Company and shares of common stock, par value $.25 per share,
of the Company and the preferred stock purchase rights associated with such
common stock;
NOW, THEREFORE, the undersigned in his capacity as a director
or officer or both, as the case may be, of the Company, does hereby appoint Jay
A. Precourt and James W. Whalen, and each of them severally, his true and lawful
attorney or attorneys with power to act with or without the other, and with full
power of substitution and resubstitution, to execute in his name, place and
stead, in his capacity as director, officer or both, as the case may be, of the
Company, the Registration Statement, including the exhibits thereto and the
Prospectus or Prospectuses referred to above, and any and all amendments thereto
(including post-effective amendments) and any supplement or supplements thereto
and any and all instruments necessary or incidental in connection therewith, as
said attorney or attorneys shall deem necessary or incidental in connection
therewith, and to file the same with the Commission and to appear before the
Commission in connection with any matter relating thereto. Each of said
attorneys shall have full power and authority to do and perform in the name and
on behalf of the undersigned, in any and all capacities, every act whatsoever
necessary or desirable to be done in the premises, as fully and to all intents
and purposes as the undersigned might or could do in person, the undersigned
hereby ratifying and approving the acts that said attorneys and each of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 17 day of June, 1996.
/s/RONALD F. WALKER
Ronald F. Walker
<PAGE>
EXHIBIT 24
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) [ ]
---------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer
Identification No.)
712 MAIN STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
-------------------
TEJAS GAS CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 76-0263364
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1301 MCKINNEY ST., SUITE 700
HOUSTON, TEXAS 77010
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(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 OR SUPERVISING AUTHORITY
TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
(See Note on Page 5.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE
CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION
310(B)(1) OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY
SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE
SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH
OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE>
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF
THE TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY
EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH
CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ ---------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR
THEIR OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ ---------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE.
COL. A COL. B COL. C COL. D
WHETHER THE AMOUNT OWNED
SECURITIES BENEFICIALLY OR HELD PERCENT OF CLASS
ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY
OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN
TITLE OF CLASS SECURITIES IN DEFAULT IN COL. C
-------------- ---------- ---------- ---------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
-------------- ----------- ------------------ ---------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
-------------- ----------- ------------------ ---------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A
PERSON OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
-------------- ----------- ------------------ ---------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED
TO THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- ----------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO
THE SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 5.)
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER
WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN
ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE
HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series.
(See Note on Page 5.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE
IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
<PAGE>
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
o1 -- A copy of the articles of association of the trustee as
now in effect.
#2 -- A copy of the certificate of authority of the trustee to
commence business.
*3 -- A copy of the authorization of the trustee to exercise
corporate trust powers.
**4 -- A copy of the existing by-laws of the trustee.
5 -- Not applicable.
*6 -- The consent of the trustee required by Section 321(b) of
the Act.
***7 -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8 -- Not applicable.
9 -- Not applicable.
- -------------
o Incorporated by reference to exhibit bearing the same
designation and previously filed with the Securities and
Exchange Commission as an exhibit to the Form S-3 File No.
33-56195.
# Incorporated by reference to exhibit bearing the same
designation and previously filed with the Securities and
Exchange Commission as an exhibit to the Form S-3 File No.
33-42814.
* Incorporated by reference to exhibit bearing the same
designation and previously filed with the Securities and
Exchange Commission as an exhibit to the Form S-11 File
No. 33-25132.
** Incorporated by reference to exhibit bearing the same
designation and previously filed with the Securities and
Exchange Commission as an exhibit to the Form S-3 File No.
33-65055.
*** Incorporated by reference to exhibit bearing the same
designation and previously filed with the Securities and
Exchange Commission as an exhibit to the Form S-4 File No.
333-3263.
-------------------------------
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base responsive answers to Items 2 and 13,
the answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-1.
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF
1939 THE TRUSTEE, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF HOUSTON
AND STATE OF TEXAS, ON THE 14TH DAY OF JUNE, 1996.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ TERRY L. STEWART
Terry L. Stewart
Assistant Vice President
<PAGE>
